UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


/^ 


/  - 


THE  REFORM  OF  LEGAL 
PROCEDURE 


THE  REFORM  OF 
LEGAL  PROCEDURE 


BY 
MOORFIELD  STOREY 


NEW   HAVEN:   YALE   UNIVERSITY   PRESS 

LONDON:   HENRY   EROWDE 

OXFORD    UNIVERSITY   PRESS 

MCMXI 


COPYRIGHT,    I911, 
BY   YALE    UNIVERSITY   PRESS 

First  printed  September,  1911,  750  copies 


THE  ADDRESSES  CONTAINED  IN  THIS  BOOK  WERE 
DELIVERED  IN  THE  WILLIAM  L.  STORRS  LECTURE 
SERIES,  191I,  BEFORE  THE  LAW  SCHOOL  OF  YALE 
UNIVERSITY,   NEW   HAVEN,   CONNECTICUT 


v-J 

\ 

V 


208174 


CONTENTS 

PAGE 

I  The  Conditions  of  the  Problem 
AND  THE  Responsibilities  of 
THE  Lawyer      i 

II     The  Reduction  of  Litigation  by 

Legislation 50 

III  Delays  During  Trial 91 

IV  Delay  in  Appellate  Courts    .    .      145 

V  Criminal  Procedure.  The  Law- 
yer's Responsibilities  for  Leg- 
islation           193 


vu 


THE  REFORM  OF  LEGAL 
PROCEDURE 


THE  REFORM  OF  LEGAL 
PROCEDURE 


THE  CONDITIONS  OF   THE  PROBLEM  AND 
THE  RESPONSIBILITIES  OF   THE  LAWYER 

'TTT^HE  corner-stone  of  this  republic,  as  of 
A      all  free  governments,  is  respect  for  and 
obedience  to  the  law." 

These  words  of  Theodore  Roosevelt  state  a 
poHtical  axiom  which  every  citizen  is  bound  to 
uphold.  No  one  has  stated  this  obligation  more 
strongly  than  Abraham  Lincoln  when  he  said: 

"Let  reverence  for  the  law  be  breathed  by 
every  American  mother  to  the  babe  that  prattles 
on  her  lap;  let  it  be  taught  in  schools  and  col- 
leges; let  it  be  preached  from  the  pulpit,  pro- 
claimed in  legislative  halls  and  enforced  in  courts 
of  justice.  And,  in  short,  let  it  become  the 
poUtical  religion  of  the  nation,  and  let  the  old 
and  the  young,  the  rich  and  the  poor,  the  grave 
I 


REFORM  OF  LEGAL  PROCEDURE 

and  the  gay,  of  all  sexes  and  tongues  and  colors 
and  conditions,  sacrifice  unceasingly  upon  its 
altars." 

This  duty  of  every  citizen  is  peculiarly  the 
duty  of  the  lawyer.  We  cannot  respect  our- 
selves unless  we  respect  the  law  whose  guardians 
we  are,  and  every  man  who  enters  the  Bar  as- 
sumes thereby  an  obligation  to  make  the  law,  its 
precepts  and  its  practice,  worthy  of  respect. 
This  is  his  first  and  last  debt  to  his  profession. 
The  great  lawyers  of  the  past  have  been  the 
leaders  of  the  community,  and  have  deserved 
and  enjoyed  in  ample  measure  the  confidence  of 
their  fellow-citizens.  To-day  unhappily,  for  rea- 
sons which  I  shall  discuss  later,  the  law  and  its 
ministers  are  no  longer  trusted  as  implicitly,  but 
on  the  contrary  are  attacked  from  every  side, 
and  lawlessness  increases  the  country  over. 

For  example,  let  me  quote  the  language  of 
President  Taft,  whose  long  and  varied  experience 
at  the  Bar,  on  the  Bench,  and  in  the  most  exacting 
administrative  ofiice  qualifies  him  peculiarly  to 


CONDITIONS  OF  THE  PROBLEM 

speak,  and  whose  authority  certainly  will  not 
be  questioned  here.  Speaking  at  Chicago,  in 
September,   1909,  he   said: 

"There  is  no  subject  upon  which  I  feel  so 
deeply  as  upon  the  necessity  for  reform  in  the 
administration  of  both  civil  and  criminal  law. 
''^  To  sum  it  all  up  in  one  phrase,  the  difficulty  m 
both  is  undue  delay.  It  is  not  too  much  to  say 
that  the  administration  of  criminal  law  in  this 
coimtry  is  a  disgrace  to  our  civilization,  and  that 
the  prevalence  of  crime  and  fraud,  which  here 
is  greatly  in  excess  of  that  in  the  European 
countries,  is  due  largely  to  the  failure  of  the  law 
and  its  administration  to  bring  criminals  to 
justice.  I  am  sure  that  this  failure  is  not  due 
to  corruption  of  officials.  It  is  not  due  to  their 
negHgence  or  laziness,  though  of  course  there  may 
be  both  in  some  cases;  but  it  is  chiefly  due  to  the  'TdJ^/ 
System  against  which  it  is  impossible  for  an  ee 
nest  prosecutor  and  an  efficient  judgete-'Sfruggle. 

But  reform  in  our  criminal  procedure  is  not  the 
3 


REFORM  OF  LEGAL  PROCEDURE 

only  reform  that  we  ought  to  have  in  our  courts. 
On  the  civil  side  of  the  courts  there  is  undue 
delay,  and  this  always  works  for  the  benefit  of 
the  man  with  the  longest  purse.  The  employ- 
ment of  lawyers  and  the  payment  of  costs  all 
become  more  expensive  as  the  Ktigation  is 
extended.  It  used  to  be  thought  that  a  system 
by  which  cases  involving  small  amounts  could  be 
carried  to  the  Supreme  Court  through  two  or 
three  courts  of  intermediate  appeal  was  a  perfect 
system,  because  it  gave  the  poor  man  the  same 
right  to  go  to  the  Supreme  Court  as  a  rich  man. 
Nothing  is  further  from  the  truth.  What  the 
poor  man  needs  is  a  prompt  decision  of  his  case; 
and  by  limiting  the  appeals  in  cases  involving 
small  amoimts  of  money,  so  that  there  shall  be 
a  final  decision  in  the  lower  court,  an  oppor- 
tunity is  given  to  the  poor  litigant  to  secure  a 
judgment  in  time  to  enjoy  it,  and  not  after  he 
has  exhausted  all  his  resources  in  litigating  to 
the  Supreme  Court. 


CONDITIONS   OF  THE   PROBLEM 

,  Of  all  the  questions  that  are  before  the  Ameri- 
can people,  I  regard  no  one  as  more  impor- 
tant than  this,  to  wit:  The  improvement  of  the 
administration  of  justice." 

Another  accuser  is  your  own  teacher.  Pro- 
fessor Vance,  who,  when  Dean  of  the  George 
Washington  University,  said: 

"Bluntly  put,  the  American  lawyer  has 
proved  a  failure.  In  no  other  free  and  civilized 
country  are  the  laws  so  ill-administered  as  in 
these  United  States.  We  lead  the  world  in 
most  of  the  great  struggles  mankind  is  making, 
but  in  the  administration  of  the  law  America 
lags  two  generations  behind  the  rest  of  the  civi- 
Hzed  world.  No  constructive  reforms  of  a  com- 
prehensive kind  have  been  seriously  attempted 
since  the  days  of  David  Dudley  Field,  now 
passed  a  half  century  and  more.  Our  inefficient 
procedure  in  civil  actions  is  a  reproach  to  the 
nation  and  a  disgrace  to  the  bar,  while  our 
procedure  in  criminal  cases,  with  its  enormous 
expense,  its  incredible  delays,  and  its  frequent 
5 


REFORM  OF  LEGAL  PROCEDURE 

and  gross  mis-carriages  of  justice,  is  a  stench 
in  the  nostrils  of  the  nations. 

The  legal  profession  in  America  is  blighted  by 
two  serious  faults.  The  first  is  a  low  moral 
tone,  manifesting  itself,  in  its  worst  form,  in 
deUberate  preying  upon  the  public,  legal  parasit- 
ism, and,  in  its  less  repulsive  form,  in  a  selfish 
indifference  to  the  deep  public  interest  with  which 
the  calling  of  the  lawyer  is  affected.  The  second  is 
a  lack  of  knowledge  of  the  law  as  a  science,  as  dis- 
tinguished from  knowledge  of  the  law  as  a  craft." 

These  are  criticisms  of  the  Bar,  but  the  Bench 
is  not  spared.  You  will  recall  the  severe  censure 
with  which  Judge  Humphreys  and  other  judges 
were  visited  some  years  ago  by  our  last  President, 
because  their  decisions  did  not  accord  with  his 
views,  and  his  attacks  during  the  recent  poUtical 
campaign  upon  the  Supreme  Court  of  the  United 
States  and  upon  other  eminent  judges,  whom 
he  characterized  variously  as  "fossilized,"  "reac- 
tionary," or  in  even  less  flattering  terms.  What- 
ever we  may  think  of  such  language,  it  cannot  be 
6 


CONDITIONS  OF   THE  PROBLEM 

ignored,  for  it  at  once  expresses  and  creates  a 
popular  distrust  of  our  judiciary  at  a  time  when 
it  is  dealing  with  the  most  vital  questions  and 
the  most  powerful  interests  in  the  country,  when 
it  is  asked  at  once  to  restrain  the  aggressions  of 
capital  and  the  excesses  of  labor,  and  when,  there- 
fore, it  needs,  as  perhaps  never  before,  the  full 
confidence  and  ungrudging  support  of  the  public. 

This  loss  of  confidence  in  the  courts  finds 
expression,  not  only  in  political  harangues,  but 
in  legislation,  like  the  law  recently  passed  in 
Massachusetts,  which  takes  from  the  courts  the 
power  to  punish  for  contempt  where  the  act 
punished  is  a  crime,  unless  the  accused  is  first 
convicted  by  a  jury;  and  the  provision  in  the  new 
constitution  of  Arizona,  which  makes  it  possible 
to  recall  a  judge  if  his  decisions  are  unpopular. 
I  shall  give  you  other  examples  of  this  tendency, 
but  these  are  enough  for  my  present  purpose, 
taken  as  they  are  from  the  oldest  and  the  newest 
states  of  the  union. 

A  very  significant  expression  of  popular  feeling 
7 


REFORM  OF  LEGAL  PROCEDURE 

on  this  subject  is  found  in  the  vote  recently 
cast  by  the  Council  of  the  National  Economic 
League,  whose  members  were  asked  to  select 
from  a  list  of  subjects  for  public  discussion, 
those  which  they  considered  of  the  most  pressing 
importance.  The  Council  consists  of  about 
eight  hundred  members,  taken  from  every  state 
in  the  Union,  including  presidents  of  universi- 
ties, professors  of  political  economy,  judges,  law- 
yers, bankers,  merchants,  manufacturers,  and 
it  represents  all  classes,  interests,  and  opinions. 
The  vote  showed  that  these  men  placed  "Direct 
Legislation,"  including  primary  nominations,  the 
referendum  and  the  recall,  first,  and  "Inefficiency 
and  Delay  of  the  Courts  in  the  Administration 
of  Justice,"  second,  in  a  list  of  eleven  subjects, 
putting  the  latter  far  above  the  regulation  of 
corporations,  the  centralization  of  power  in  the 
Federal  Government,  the  conservation  of  national 
resources,  taxation,  economy,  the  relations  of 
employers  and  workmen,  and  even  the  tariff. 
To  my  sorrow,  I  must  confess  that  the  Economic 
8 


CONDITIONS  OF  THE  PROBLEM 

Club  of  my  native  city  placed  the  inefficiency  of 
the  courts  at  the  head  of  the  list. 

Indeed,  to  such  a  pitch  has  our  profession 
fallen,  that  Mr.  Roosevelt,  after  reflecting  on  its 
sins  and  shortcomings  during  his  year  in  the 
wilds  of  Africa,  had  no  sooner  emerged  from  the 
jungle  than  he  said:  —  "No  people  have  perma- 
nently amounted  to  anything  whose  only  public 
leaders  were  clerks,  politicians,  and  lawyers." 
He  found  some  virtue  in  the  politician,  add- 
ing:—  "An  honest,  courageous,  and  farsighted 
politician  is  a  good  thing  in  any  country  .  .  . 
where  the  business  man,  the  landowner,  the 
engineer,  the  man  of  technical  knowledge,  men 
of  a  hundred  different  pursuits,  represent  the 
average  type  of  leadership,"  but  among  all 
these  possible  leaders  he  found  no  room  for  the 
lawyer.  Not  "in  his  haste,"  but  after  long  and 
solitary  reflection,  he  places  us  lowest  in  the  scale 
of  citizenship,  and  condemns  the  lawyers  of  all 
time  as  well  as  those  who  incur  his  wrath  to-day. 

"No  people  have  permanently  amounted 
9 


REFORM  OF  LEGAL  PROCEDURE 

to   anything   whose   only   leaders   were   clerks, 
politicians,  and  lawyers." 

I  am  not  inclined  to  accept  this  judgment. 
We  might  inquire  what  backward  people  in 
Africa  or  elsewhere  has  been  kept  from  civiliza- 
tion by  its  lawyers.  We  might  ask  how  the 
downfall  of  Palmyra  or  Babylon,  the  decay  of 
Greece,  Rome,  the  Ottoman  Empire,  or  any 
other  nation,  can  be  traced  to  the  predominance 
of  the  law.  We  might  suggest  that  the  Corpus 
Juris  of  Justinian  is  the  most  enduring  monument 
of  imperial  Rome,  and  that  Napoleon's  most 
valuable  legacy  to  the  world  is  the  Code  which 
bears  his  name.  We  might  even  contend  that 
our  own  country  has  amounted  to  something, 
although  it  has  numbered  among  its  leaders  such 
lawyers  as  Hamilton,  the  Adamses,  Jefferson, 
Marshall,  Lincoln,  Sumner,  Cleveland,  and  Taft, 
and  though  of  the  twenty-eight  Americans  whose 
lives  were  thought  worthy  to  be  recorded  in  the 
series  of  biographies,  entitled  "American  States- 
men," twenty  were  lawyers. 

lO 


CONDITIONS   OF  THE   PROBLEM 

We  need  not,  however,  stop  there.  We  can 
go  further,  and  point  with  pride  to  the  great 
lawyers  of  every  civilized  country,  and  reply 
with  absolute  truth: 

"No  people  have  ever  permanently  amounted 
to  anything  among  whose  leaders  great  lawyers 
were  not  conspicuous  and  among  whom  respect 
for  the  law  was  not  a  controlling  force." 

Law  is  civilization,  and  the  history  of  civiliza- 
tion is  the  record  of  the  struggle  between  might 
and  right  —  between  force  and  law.  Whatever 
may  have  been  the  sins  of  our  profession,  its 
members  have  ever  been  the  champions  and 
defenders  of  liberty,  and  the  names  of  Cicero  and 
Mazzini,  of  Grotius  and  Barneveldt,  of  Turgot, 
Danton,  Thiers  and  Gambetta,  Coke,  Hampden, 
and  Burke,  of  Grattan  and  O'Connell,  not  to 
mention  American  lawyers,  recall  only  a  few 
among  such  champions.  The  facts  might  not 
alter  the  opinion  of  our  critic,  but  they  com- 
pletely answer  his  sneer. 

We  cannot,  however,  long  retain  our  claim  to 
II 


REFORM  OF  LEGAL  PROCEDURE 

leadership,  or  even  to  the  respect  of  the  com- 
munity unless  we  show  ourselves  able  to  do 
successfully  the  work  which  is  especially  ours, 
and  to  make  the  law  an  eflScient  instrument  of 
justice.  We  cannot  shut  our  ears  to  such  words 
as  I  have  quoted  to  you,  and  we  must  consider 
how  much  truth  there  is  in  these  criticisms, 
and  how  the  existing  evils  in  the  administration 
of  the  law  can  best  be  dealt  with. 

These  questions  are  of  peculiar  interest  to  you 
who  are  just  entering  upon  your  professional 
lives,  for  ours  is  a  very  practical  people,  and  if 
litigation  becomes  too  tedious,  too  expensive,  and 
too  uncertain  for  ordinary  men,  clients  will  be- 
come extinct,  and  with  them  the  support  of  the 
lawyer.  We  must  make  our  methods  suit  their 
needs,  and  not  waste  their  time  and  money 
in  settling  points  of  procedure  or  technical  law, 
which  may  interest  us  but  not  them,  remember- 
ing the  remark  of  Lord  Jeffrey,  that  "It  is 
not  by  his  own  taste  but  by  the  taste  of  his 
fish  that  the  angler  is  guided  in  his  choice  of 

12 


CONDITIONS  OF  THE  PROBLEM 

bait."  The  problem  is,  therefore,  severely  prac- 
tical, and  upon  you  who  bring  to  the  work  fresh 
strength  and  enthusiasm,  who  are  not  bound  by 
the  habits  and  the  traditions  which  fetter  the 
activity  of  your  seniors,  and  who  for  a  while  at 
least  may  fairly  expect  the  necessary  leisure, 
upon  you  must  fall  the  labor  of  reform.  For 
those  who  will  undertake  and  carry  it  through, 
the  highest  rewards  of  the  profession  are  waiting. 
'^Sic  itur  ad  astra." 

I  propose,  in  these  lectures,  to  consider  succes- 
sively the  evils  which  are  pointed  out  by  our 
critics,  and  to  suggest,  so  far  as  I  can,  the  possi- 
ble remedies.  The  subject  is  old,  and  I  may  not 
tell  you  much  that  is  new,  but  my  aim  is  to 
make  you  think,  and  first  I  would  let  you  appreci- 
ate the  conditions  of  the  problem,  and  its  essential 
difficulties.  Men  frequently  point  to  the  advance 
which  has  been  made  in  medicine  and  surgery,  in 
physical  science,  and  in  mechanical  invention 
during  the  last  half  century,  and  compare  it 
with  the  lack  of  progress  in  the  law,  to  the  disad- 
13 


REFORM  OF  LEGAL  PROCEDURE 

vantage  of  our  profession.  The  comparison  is 
most  misleading.  The  whole  community  stands 
behind  the  scientific  explorer  or  inventor,  and 
rejoices  in  his  success.  Every  man  is  glad  when 
the  remedy  for  diphtheria,  or  tuberculosis,  or 
yellow  fever  is  discovered,  when  Lister  invents 
the  antiseptic  spray,  when  the  aviator  on  his 
aeroplane  crosses  the  Channel  or  the  Alps,  or 
when  Edison  brings  the  prima  donna  into  our 
own  parlors  by  the  phonograph.  Disease  has 
no  friends  to  insist  that  the  surgeon  shall  continue 
to  infect  his  patient,  or  the  physician  to  reduce 
his  strength  by  bleeding  and  drastic  medicines. 
No  strong  interests  are  enhsted  to  support  the 
physical  ills  which  destroy  us,  and  hence  the 
progress  of  science  is  not  only  unopposed  but 
aided  by  generous  contributions  even  from 
"malefactors  of  great  wealth."  The  way  of  the 
scientific  reformer  is  smoothed  before  him. 

Very  different  are  the  conditions  which  con- 
front   the   man    who    would    reform    abuses   in 
poUtics,   in   social   life,   or   in   the   law.     Upon 
14 


CONDITIONS   OF  THE  PROBLEM 

every  existing  evil  in  either  some  one  now 
fattens,  and  is  sure  to  oppose  a  change.  You 
cannot  purify  municipal  politics  without  dis- 
turbing the  many  great  and  Httle  "grafters," 
to  use  the  modern  phrase,  who  live  by  corrup- 
tion. You  cannot  reduce  the  tariff  without  a 
battle  against  every  man  who  finds  his  profit  in 
the  privileges  given  by  the  existing  law.  You 
cannot  punish  the  boycott,  or  try  to  prevent  the 
lawless  excesses  of  the  striker,  without  bringing 
down  upon  your  head  the  anathemas  of  organ- 
ized labor.  You  cannot  assert  the  equal  rights 
of  the  negro  without  encoimtering  the  bitter 
prejudice  of  the  ignorant  whites.  Every  form 
of  legal  or  poUtical  injustice  profits  some  one, 
and  every  step  forward  must  be  taken  against 
his  opposition. 

So  is  it  with  reform  in  law.  All  the  forces 
of  tradition,  of  established  habit,  and  in  many 
cases  of  personal  interest  are  united  against 
reform,  and  the  inertia  of  very  busy  men  accus- 
tomed to  existing  methods  and  often  too  old  to 
15 


REFORM  OF  LEGAL  PROCEDURE 

learn  new  ones  —  of  men,  who  are  content  to 
say,  "Let  well  alone,"  without  inquiring  too 
closely  whether  it  is  "well"  or  not, — of  men 
who  are  more  prone  to  discuss  than  to  act,  is 
perhaps  the  strongest  defence  of  old  abuses, 
strongest,  because  it  is  honest.  We  must 
encounter  also  the  differing  opinions  of  sincere 
reformers,  each  proposing  his  own  remedy,  and 
only  after  hard  conflict  with  both  friends  and 
enemies  can  we  expect  to  advance.  One  can 
test  the  value  of  a  discovery  in  medicine  by  its 
practical  efifect  on  selected  cases.  The  result  of 
a  few  experiments  closes  debate  withui  a  short 
time.  The  effect  of  a  change  in  the  law,  or 
in  legal  procedure,  cannot  be  tested  as  quickly 
or  as  easily,  and  hence  must  long  remain  a 
subject  for  discussion  with  consequent  delay. 

Now,  fortimately,  the  leaders  of  the  legal 
profession  recognize  the  necessity  of  reform, 
and  their  feeling  creates  an  atmosphere  which 
is  helpful.  The  conditions  wliich  await  the 
reformers  before  me  are  as  favorable  as  they 
i6 


CONDITIONS  OF  THE  PROBLEM 

are  ever  likely  to  be,  and  opportunity  waits  for 
him  who  has  the  strength  and  the  courage  to 
grasp  it. 

With  this  preliminary  statement  I  will  now 
proceed  to  the  discussion  of  my  subject,  but 
before  deahng  with  the  abuses  which  do  exist, 
let  me  first  dispose  of  one  which  does  not  exist, 
but  is  made  the  ground  of  a  serious  charge 
against  our  profession. 

In  addressing  the  assembled  alumni  of  Harvard, 
President  Roosevelt  said:  "Many  of  the  most 
influential  and  most  highly  remunerated  members 
of  the  law  in  every  centre  of  wealth  make  it  their 
special  task  to  work  out  bold  and  ingenious 
schemes  by  which  their  very  wealthy  clients, 
individual  or  corporate,  can  evade  the  laws 
which  are  made  to  regulate  in  the  interest  of  the 
pubUc  the  use  of  great  wealth!"  This  is  a  very 
sweeping  statement  and  invites  analysis.  It  is 
founded  on  the  very  violent  presumption  that 
the  legislature  in  passing  a  law  has  a  clear  and 
definite  object  in  view,  and  that,  to  accomplish 
17 


REFORM  OF  LEGAL  PROCEDURE 

this  object,  it  adopts  clear  and  precise  language 
which  every  citizen  must  understand.  The 
fact  of  course  is,  that  in  most  cases  the  law  is 
drawn  hastily  to  meet  a  real  or  supposed  popular 
demand,  that  it  is  amended  carelessly  at  the 
instance  of  members  who  are  not  thoroughly 
familiar  with  its  provisions,  that  it  means  one 
thing  to  one  legislator  and  another  to  another, 
that  it  is  often  passed  with  very  slight  debate, 
and  that  it  not  infrequently  contains  what  is 
famiharly  called  "a.  joker,"  which  has  escaped 
the  legislature's  observation.  The  question 
which  the  lawyer  and  his  client  must  decide  is 
not  what  this  or  that  legislator  thought  he  was 
doing,  nor  even  what  the  President  beUeved  to  be 
the  purpose  of  the  law  which  he  approved,  but 
what  the  legislature  as  a  whole  meant,  and  this 
meaning  can  onl}^  be  ascertained  from  the 
language  of  the  law  itself. 

The  Supreme  Court  of  the  United  States,  in 
a  series  of  cases,  has  labored  long  and  carefully 
to   discover  what   the   Sherman   anti-trust  law 
i8 


CONDITIONS   OF  THE  PROBLEM 

means,  and  the  justices  have  rarely  agreed. 
They  have  now  for  many  months  been  consider- 
ing how  it  shall  be  applied  to  the  greatest,  and, 
to  the  pubUc,  the  most  obnoxious  trust  in  the 
country.  The  Interstate  Commerce  Act  has 
been  the  subject  of  long  and  painful  study  in 
the  courts.  All  our  judges  have  like  diflBculties 
with  legislative  enactments.  It  is  not  strange, 
therefore,  that  the  meaning  of  a  new  law  should 
not  at  once  be  apparent  to  the  ordinary  citizen, 
and  that  when  the  law  interferes  with  an  existing 
practice  or  course  of  dealing,  the  question  in 
many  cases  should  arise,  how  far  this  interference 
goes.  That  question  is  submitted  to  counsel, 
and  it  is  a  very  practical  question.  The  law- 
yer answers  it  as  best  he  may,  saying  that  the 
law  forbids  this  and  permits  that,  and  in  giving 
his  answer  to  such  a  question  he  decides  what 
the  words  of  the  statute  mean  —  what  the  legis- 
lature has  in  fact  done.  This  conclusion  may 
or  may  not  agree  with  what  individual  legis- 
lators or  the  President  meant  to  do,  but  an 
19 


REFORM  OF  LEGAL  PROCEDURE 

intention  to  pass  a  law  is  one  thing,  and  the  law 
itself  is  another.  When  our  critic  says  that 
eminent  lawyers  are  "working  out  bold  and 
ingenious  schemes  by  which  their  .  .  .  clients 
.  ,  .  can  evade  the  laws"  they  are  really  telling 
their  clients  what  the  law  permits,  and  how  to 
make  their  practice  comply  with  its  requirements. 
This  is  not  evading  but  obeying  the  law,  and 
because  even  the  most  exalted  citizen  finds  that 
the  law  does  not  accomplish  what  he  thinks 
proper,  he  has  no  right  to  criticize  those  who  act 
under  the  law  which  the  legislature  thought 
proper,  for  they  obey  the  law  as  it  is,  and  not 
the  opinion  of  an  orator  as  to  what  the  law  ought 
to  be.  A  coimsel  would  be  indeed  at  sea  who 
should  seek  to  advise  his  clients  not  to  do  what 
a  president  or  governor  thinks  they  ought 
not  to  do,  and  would  have  greater  difficulty  in 
discovering  either  officer's  desire  from  his  utter- 
ances on  the  platform  and  in  reconciling  his 
varying  statements,  than  he  has  in  construing 
the  blind  language  of  the  statute  itself.  Fortu- 
20 


CONDITIONS   OF  THE   PROBLEM 

nately  for  us  all,  the  law  is  not  made  by  a  stump 
speech  or  even  by  a  President's  message.  Our 
rulers  are  not  despots  who  govern  by  edict. 

That  there  are  cases  where  lawyers  help  their 
clients  to  do  things  which  are  improper  and 
unlawful  is  unhappily  true,  as  there  are  manu- 
facturers who  produce  fraudulent  goods,  doctors 
who  perform  illegal  operations,  and  magistrates 
who  disregard  the  constitution  and  the  laws 
which  they  have  sworn  to  obey  and  execute; 
but  the  sweeping  statement  which  I  have 
quoted  is  one  of  many  Uke  attacks  on  Bar 
and  Bench  alike,  which  are  entirely  unjustified 
or  grossly  exaggerated,  and  which  do  great 
injury  by  weakening  that  respect  for  the  law 
and  its  administration  which  Mr.  Roosevelt 
in  a  different  mood  has  rightly  called  "the 
corner-stone  of  this  republic." 

Let  us  now  proceed  to  consider  the  real  evils 
which  beset  the  administration  of  justice,  and 
first  among  them  is  "the  law's  delay"  —  an 
evil  which  has  been   the  cause  of    bitter  com- 

21 


REFORM  OF  LEGAL  PROCEDURE 

plaint  ever  since  legal  tribunals  came  into  being. 
The  barons  of  England  made  their  king  promise 
in  these  words: 

^'Nulli  negabimus,  nulli  vendemus,  nulli 
diferemus  rectum  vel  justitiam,"  putting  the 
delay  on  the  same  plane  with  the  denial  or 
sale  of  justice.  The  author  of  Hamlet,  whether 
a  Lord  Chancellor  or  a  humble  poet,  places  it 
among  the  intolerable  burdens  of  life  which  a 
man  might  well  escape  by  suicide.  It  has  been 
a  favorite  theme  with  novelists,  and  always  a 
constant  topic  in  the  conversation  of  clients  and 
their  friends,  never  more  so  than  now. 

But  in  considering  how  to  remedy  it,  we  must 
first  remember  that  some  delay  is  necessary  and 
beneficial.    As  I  have  said  in  another  place,  — 

The  courts  are  called  upon  to  decide  disputed 
questions  of  fact  and  law  on  which  the  parties 
find  it  impossible  to  agree,  and  in  order  to  decide, 
there  must  be  patient  investigation.  The  careful 
examination  of  any  subject  takes  time.  The 
chemist  in  his  laboratory,  the  historian  in  his 

22 


CONDITIONS   OF  THE  PROBLEM 

library,  the  astronomer  in  his  observatory,  spends 
a  great  deal  of  time  in  reaching  the  conclusions 
which  he  announces  to  the  world  in  a  few  words; 
but  the  time  which  he  spends  is  his  own,  and 
the  world  does  not  know  how  many  hours  of 
labor  have  gone  into  researches  of  which  the 
fruits  only  are  laid  before  it.  The  difference 
between  investigations  which  are  made  by  courts 
and  those  which  are  made  by  students  and 
inventors,  is  that  the  latter  do  their  work  in 
private  and  use  their  own  time,  while  the  courts 
do  their  work  in  public  and  use  time  for  which 
the  public  pays.  In  order  to  investigate  pro- 
perly, they  call  upon  some  citizens  to  act  as 
jurors  and  draw  others  into  court  as  witnesses. 
The  whole  community  sees  how  long  the  investi- 
gation takes,  and  what  it  costs,  and  therefore  the 
law's  delay  is  more  in  the  public  eye  than  the 
delay  of  private  investigators. 

At   the   same   time,   this   delay  is   what   the 
public     wants.       It      demands      investigation. 
Nothing  is  more  vexing,  more  proverbially  un- 
23 


REFORM  OF  LEGAL  PROCEDURE 

sound,  than  a  "  snap  judgment."  The  decisions 
of  the  courts  not  only  decide  the  rights  of  the 
immediate  Utigants  in  the  case  at  bar,  but  they 
also  lay  down  precedents  which  establish  the 
rights  of  all.  A  man  wants  his  architect,  when 
he  is  building  a  house,  to  make  the  plans  care- 
fully; he  wants  his  doctor,  when  he  examines 
his  symptoms,  to  make  sure  that  the  examina- 
tion is  thorough ;  and  he  wants  the  courts,  when 
they  decide  the  rules  by  which  men  are  to  be 
guided  in  their  daily  Ufe,  to  be  thorough,  also. 
The  public  wants  no  capricious,  hasty  judgments, 
but  that  justice  which  is  done  by  careful, 
patient  investigation,  and  such  an  investi- 
gation takes  time,  which  is  another  word  for 
delay. 

Not  only  that,  but  a  certain  amount  of  delay 
is  essential  in  order  that  the  case  may  be  fairly 
tried.  The  plaintiff  can  bring  his  suit  whenever 
he  sees  fit.  The  defendant  has  no  control  over 
that.  A  claim  may  be  entirely  unfounded,  but 
it  may  take  a  great  while  to  collect  the  witnesses 
24 


CONDITIONS  OF   THE   PROBLEM 

from  various  parts  of  the  world  to  prove  the 
truth.  It  takes  time  to  examine  books;  it 
takes  time  to  look  through  letters;  it  takes  time 
for  the  defendant  to  marshal  the  evidence  which 
is  necessary  to  show  that  the  plaintifif's  claim  is 
groundless.  When  a  man  comes  forward,  as  did 
the  Tichborne  claimant  in  England,  asserting  his 
right  to  an  ancient  title  and  a  large  estate,  and 
having  carefully  prepared  his  claim  in  advance, 
the  defendant  must  have  time  to  prepare  his 
defense  —  to  follow  the  pretender's  career  from 
its  beginning,  and  to  prove  that  he  is  really 
only  a  butcher.  The  trial  of  that  case  took 
more  than  six  months.  The  preparation  could 
not  be  made  without  long  and  patient  investiga- 
tion. This  is  one  reason  why  delay  is  incident 
to  the  law. 

Nor  is  delay  entirely  undesirable.  Men  in 
hot  blood  rush  to  their  lawyers  with  some  com- 
plaint. They  want  something  done  at  once, 
and  a  writ  is  issued.  Then  they  ask  what  comes 
next,  and  are  told  that  in  perhaps  thirty  days  the 
25 


REFORM  OF  LEGAL  PROCEDURE 

case  will  be  entered,  that  the  other  side  has  then 
thirty  days  in  which  to  file  an  answer;  and  that 
very  likely  the  case  may  be  reached  in  a  year  or 
more.  They  have  time  to  cool;  and  many  a 
suit  which  would  be  tried,  if  it  could  be  tried  in  a 
week,  with  great  heat  and  bad  feeling  between 
the  combatants,  and  with  much  expense  to  the 
public  as  well  as  to  the  parties,  is  settled  before 
it  is  reached,  because  the  parties  have  had  time 
to  think  it  over  and  to  reach  an  amicable  adjust- 
ment.    Such  delay  is  extremely  useful. 

In  this  connection  a  few  figures  may  be  of 
interest.  In  England,  in  1905,  there  were 
brought  1,213,000  suits,  and  of  those,  349,200 
were  defaulted;  440,300  were  settled;  less  than 
one-third  were  tried.  The  proportion  is  about 
the  same  here,  and  these  amicable  and  economi- 
cal adjustments  are  secured  by  delay. 

So  much  can  be  said  in  favor  of  reasonable 
and  desirable  delay,  but  there  is  much  that  is 
entirely  preventable  and  which  is  neither  rea- 
sonable nor  desirable.  It  is  this  which  does 
26 


CONDITIONS  OF  THE   PROBLEM 
cruel  wrong  to  clients,  and  justly  brings  reproach 
on  the  law.     What  are  its  causes? 

This  delay  may  occur  in  bringing  a  case  to 
trial,  in  the  trial  itself,  or  in  the  proceedings 
after  the  trial.  Its  causes  are  to  be  found  partly 
in  the  lawyers,  partly  in  the  courts,  and  partly 
in  the  rules  which  regulate  procedure  and  appeal, 
and  before  proceeding  to  consider  how  these 
causes  are  to  be  removed,  there  are  certain 
fundamental  propositions  which  must  be  borne 
in  mind,  and  which  I  will  endeavor  to  state 
briefly. 

A  lawsuit  is  the  means  which  the  government 
provides  for  settling  peaceably  a  question  upon 
which  the  parties  cannot  agree.  It  is  for  the 
interest  of  the  parties  and  of  the  community 
that  this  question  should  be  settled  promptly  and 
the  dispute  ended,  for  it  is  true,  in  small  matters 
as  wjeH'as  in  great,  that  unsettled  questions  have 
b6  respect  for  the  repose  of  nations  or  men. 
The  cost  of  the  machinery  which  the  state 
provides  for  the  purpose,  the  courthouses,  the 
27 


REFORM  OF  LEGAL  PROCEDURE 

judges,  the  jurors,  the  officers,  is  borne  by 
the  public,  and  the  public  is  entitled  to  be  saved 
all  unnecessary  expense.  The  lawyers  who 
conduct  the  proceedings  are  officers  of  the  Court, 
intended  and  expected  to  aid  it  in  reaching  a 
just  conclusion,  and  therefore  given  great  powers 
and  privileges.  The  parties  are  entitled  to  a 
fair  trial  of  the  facts  either  by  jury  or  Court,  to 
a  careful  consideration  of  all  questions  of  law 
involved  by  a  competent  tribunal,  and  to  nothing 
more.  In  a  large  majority  of  cases,  three  months 
and  often  less  is  ample  time  to  give  for  prepara- 
tion or  for  settlement.  Delay  beyond  that  dulls 
the  memory  of  witnesses,  it  prevents  the  plaintiff 
in  a  suit  for  personal  injury  from  getting  well, 
since  he  must  be  sick  when  the  case  is  tried,  it 
keeps  a  creditor  out  of  money  which  perhaps 
he  sorely  needs,  it  diverts  the  thoughts  of  the 
parties  from  their  ordinary  work,  and  it  increases 
expense.  Yet,  in  all  our  large  cities,  the  delay 
is  far  greater,  since  often  two  or  more  years  will 
elapse  before  a  case  is  reached  for  trial. 
28 


/ 

CONDITIONS   OF   THE   PROBLEM 

What  are  the  causes  of  this  delay?  For  how 
much  of  it  are  the  members  of  the  Bar  responsible? 
To  answer  this  question,  we  must  have  some 
standard  by  which  to  measure  the  responsibilities 
of  counsel.  Lord  Brougham,  in  the  excitement 
of  his  argument  for  Queen  Caroline,  some  ninety 
years  ago  said: 

"An  advocate,  by  the  sacred  duty  which  he 
owes  his  client,  knows,  in  the  discharge  of  that 
office,  but  one  person  in  the  world  —  that  client 
and  none  other.  To  save  that  client  by  all 
means  and  expedients,  to  protect  that  client 
at  all  hazards  and  costs  to  all  others,  and  among 
others  to  himself,  is  the  highest  and  most 
unquestioned  of  his  duties;  and  he  must  not 
regard  the  alarm,  the  suffering,  the  torment, 
the  destruction,  which  he  may  bring  upon  any 
other.  Nay,  separating  the  duties  of  the  patriot 
from  those  of  an  advocate,  he  must  go  on,  reck- 
less of  consequences,  even  if  his  fate  should 
unhappily  be  to  involve  his  country  in  confusion 
for  his  client's  protection." 
29 


REFORM  OF  LEGAL  PROCEDURE 

Whether  in  a  soberer  moment  Lord  Brougham 
would  have  defended  this  position  may  well  be 
doubted,  but  whatever  his  view,  it  is  certain 
that  no  such  pernicious  doctrine  can  be  supported 
for  a  moment.  Brougham  makes  no  distinction 
between  the  cUent  who  is  guilty  and  one  who  is 
innocent,  between  justice  and  injustice,  between 
right  and  wrong.  In  every  state,  in  one  form  or 
another,  the  lawyer  is  required  by  the  attorney's 
oath  to  repudiate  any  such  obligation  to  his 
client.  I  quote  the  Massachusetts  form  as  it  is 
most  familiar  to  me.     Its  language  is: 

"I  solemnly  swear  that  I  will  do  no  falsehood, 
nor  consent  to  the  doing  of  any  in  court;  I  will 
not  wittingly  or  wiUingly  promote  or  sue  any 
false,  groundless,  or  unlawful  suit,  nor  give  aid 
or  consent  to  the  same;  I  will  delay  no  man  for 
lucre  or  malice;  but  I  will  conduct  myself  in  the 
office  of  an  attorney  within  the  courts  accord- 
ing to  the  best  of  my  knowledge  and  discretion 
and  with  all  good  fideUty  as  well  to  the  courts 
as  my  clients." 

30 


CONDITIONS  OF  THE  PROBLEM 

This  states  the  lawyer's  duty,  as  it  is.  Let  me 
quote  also  the  Code  of  Ethics,  lately  adopted  by 
the  Bar  of  San  Francisco,  inspired,  doubtless, 
by  the  recent  lamentable  experiences  of  justice 
in  that  city.  Though  in  terms  it  refers  only 
to  criminal  cases,  its  principle  applies  as  well  in 
all  cases. 

"A  lawyer,  who  invents  or  manufactures 
defenses  for  prisoners,  or  who  procures  their 
acquittal  by  the  practice  of  any  manner  of  deceit, 
cajolery,  wilful  distortion,  or  misrepresentation 
of  facts,  or  any  other  means  not  within  the 
spirit  as  well  as  the  letter  of  the  law,  is  to  be 
reckoned  as  an  enemy  to  society  more  dangerous 
than  the  criminal  himself;  while  successes  at  the 
bar  won  by  such  methods  can  never  be  the  basis 
of  desirable  professional  reputations,  but,  on  the 
contrary,  are  badges  of  infamy." 

Let  us  now  apply  this  standard  to  the  pro- 
ceedings before  trial,  the  bringing  of  a  suit,  the 
pleadings  in  defence,  and  the  speeding  of  the 
cause.  The  attorney's  oath  imposes  on  him 
31 


REFORM  OF  LEGAL  PROCEDURE 

who  takes  it,  not  only  an  obligation  to  his  client, 
but  to  his  client's  adversary.  He  must  pursue 
no  man  unjustly,  nor  must  he  delay  any  man  for 
lucre.  In  brief,  he  must  bring  no  suit  unless  in 
his  judgment  it  can  be  maintained,  and  he  must 
interpose  no  defence  to  a  just  suit  because  his 
client  wishes  to  delay  or  embarrass  his  opponent. 
One  great  £ause  of  delay  in  the  law  is  the 
congestion  of  the  dockets,  and  no  one  can  doubt 
that  this  congestion  would  be  much  reduced  if  all 
the  suits  which  ought  never  to  have  been  brought, 
and  those  which  ought  not  to  be  defended,  were 
eliminated.  Some  years  ago,  in  Massachusetts, 
when  money  was  worth  as  much  as  the  interest 
allowed  by  the  law,  it  was  the  regular  practice 
for  men  who  were  sued  on  their  notes  or  other 
undisputed  claims  to  file  an  answer  denying 
the  plaintiff's  allegations,  and  then  agree  that 
when  the  case  was  reached  the  defendant  should 
be  defaulted.  The  condition  of  the  docket  was 
such  that,  in  this  way,  the  debtor  secured  a 
year  or  more  of  delay  at  very  slight  expense. 
32 


CONDITIONS   OF  THE  PROBLEM 

The  lawyer  who  was  paid  to  file  such  an  answer 
for  the  debtor  and  to  make  such  an  agreement 
was  clearly  delaying  the  creditor  for  lucre,  and 
abusing  his  power  as  an  attorney. 

Far  too  often  do  we  hear  of  men  saying  to 
others  who  press  their  just  claims,  "If  you 
won't  take  my  offer  I'll  hire  a  lawyer  and  make 
you  pay  for  everything  you  get."  Every  one 
knows  that  the  debtor  can  carry  out  his  threat, 
and  will  do  so  if  he  is  rich  enough  to  afford  it 
or  malicious  enough  to  wish  it.  Is  it  surprising 
that  the  community  believes  that  a  lawyer  can  be 
hired  to  do  anything,  and  can  it  truly  be  said 
that  this  belief  is  unfounded?  So  long  as  there 
are  bad  clients  there  will  be  bad  lawyers,  and  we 
cannot  expect  that  either  will  wholly  disappear, 
but  the  profession  suffers  in  public  estimation 
from  the  acts  of  its  black  sheep,  and  every  honor- 
able lawyer  should  struggle  against  their  prac- 
tices, and  be  sure  that  his  example  is  good. 

The  delay  which  results  from  the  bringing  of 
groundless  suits  and  the  making  of  false  defences 
33 


REFORM  OF  LEGAL  PROCEDURE 

is  due  to  low  professional  standards  among 
members  of  the  Bar,  and  is  to  be  cured  by 
creating  a  public  opinion  which  will  not  tolerate 
such  practices.  But  it  can  also  be  diminished 
by  legislation.  The  practice  of  obstructing  the 
collection  of  debts  in  Massachusetts  (to  which 
I  have  alluded)  was  ended  by  a  statute  which 
enabled  the  creditor,  by  fihng  an  aflSdavit  that 
the  debtor  had  no  defence,  to  make  the  latter 
state  his  defence  in  a  counter  affidavit.  If  he 
did  not  he  was  defaulted,  and  if  he  did  the 
statute  authorized  the  Court  thereupon  to 
direct  an  immediate  trial  of  the  case.  The 
possible  delay  was  in  this  way  so  much  reduced 
that  the  Courts  ceased  to  be  a  bulwark  for 
unjust  debtors. 

A  further  step  in  the  same  direction  might 
be  taken  if  the  Courts  were  given  discretion  to 
fix  the  amount  of  costs  to  be  paid  by  the  losing 
party.  In  theory  the  costs  are  intended  to 
cover  the  expense  to  which  the  prevailing  party 
is  put  by  his  opponent.  In  practice  they  are 
.^4 


CONDITIONS  OF  THE  PROBLEM 
but  a  drop  in  the  bucket.  The  cost  of  printing  a 
voluminous  record  is  reimbursed — some  fraction 
of  what  it  costs  to  print  a  brief  is  returned, 
but  the  charges  of  counsel,  the  fees  of  expert 
witnesses,  and  other  expenses  must  be  paid  by 
the  victor  out  of  his  own  pocket,  and  these  may 
well  make  victory  more  costly  than  surrender 
without  a  contest.  Under  existing  law  it  costs 
Httle  to  start  a  groundless  suit,  in  order  to 
frighten  an  adversary,  or  take  a  speculative 
chance  of  getting  a  settlement.  It  costs  very 
little  by  various  methods  to  delay  a  suitor  until 
he  is  wearied  or  worried  into  a  compromise.  If 
he  who  would  thus  abuse  the  law  knew  that  he 
might  be  compelled  to  pay  every  dollar  of  ex- 
pense to  which  he  put  his  opponent,  he  would 
hesitate. 

There  are  many  cases  in  which  the  question 
presented,  whether  of  fact  or  law,  is  very  doubt- 
ful, and  in  these  it  might  be  unjust  to  punish 
the  losing  party  by  imposing  very  heavy  costs; 
but  if  the  Court  were  given  proper  discretion  it 
35 


REFORM  OF  LEGAL  PROCEDURE 

would  easily  discriminate,  and  only  impose  the 
heavy  costs  where  justice  required  it.  In  many 
cases,  justice  is  not  done  now,  because  the  suitor 
who  seeks  only  what  is  justly  due  him  is  mulcted 
severely  by  the  cost  of  recovering  what  is  his 
own,  and  he  is  put  to  this  cost  by  the  evil  prac- 
tices of  his  opponent.  Why  should  not  the 
latter  pay  the  damages  which  his  wrongful  act 
has  inflicted  on  another,  just  as  he  must  pay 
the  damages  inflicted  by  any  other  tortious  act? 
A  wrong  committed  in  obstructing  justice  is  no 
more  venial  than  any  other  wrong. 

It  would  be  well  also  if  the  Court  more  freely 
used  its  power  to  punish  the  lawyer  who  has  lent 
his  talents  to  injustice,  and  has  harried  or  delayed 
a  man  wrongly  for  lucre.  This  could  readily  be 
done  by  making  him  personally  pay  the  expenses 
which  the  opposing  party  has  been  compelled 
to  incur  unjustly.  The  English  Courts  have 
adopted  a  rule  which  permits  this,  and  which 
reads  as  follows : 

"If  in  any  case  it  shall  appear  to  the  Court 
36 


CONDITIONS   OF  THE   PROBLEM 

or  a  judge  that  costs  have  been  improperly  or 
without  any  reasonable  cause  incurred,  or  that 
by  reason  of  any  undue  delay  in  proceeding 
under  any  judgment  or  order  or  of  any  miscon- 
duct or  default  of  the  solicitor,  any  costs  prop- 
erly incurred  have  nevertheless  proved  fruitless 
to  the  person  incurring  the  same,  the  Court  or 
judge  may  call  on  the  solicitor  of  the  person 
by  whom  such  costs  have  been  so  incurred  to 
shew  cause  why  such  should  not  be  disallowed 
as  between  the  solicitor  and  his  client,  and  also 
(if  the  circumstances  of  the  case  shall  require) 
why  the  solicitor  should  not  repay  to  his  client  any 
costs  which  the  client  may  have  been  ordered  to 
pay  to  any  other  person,  and  thereupon  may  make 
such  order  as  the  justice  of  the  case  any  require." 
This  rule  was  applied  in  Harbin  v.  Masterman, 
L.  R.  ist  Chan.  Div.,  where  the  Court  made  the 
soHcitor  himself  pay  the  cUent  because  his  appeal 
was  frivolous,  and,  as  the  judges  called  it,  "a 
blackmaiUng  appeal  for  the  purpose  of  compel- 
ling his  opponents  to  forego  their  costs." 
37 

208174 


REFORM  OF  LEGAL  PROCEDURE 

If  the  Court  had  this  power,  and  stood  ready 
to  use  it,  and  if  the  costs  that  could  be  recovered 
were  substantial  and  not  nominal,  a  very  whole- 
some check  would  be  imposed  upon  unjust 
Htigation,  and  the  lawyer  would  be  led  to  feel 
his  personal  responsibihty  much  more  keenly. 
There  is  Httle  danger  that  judges  would  abuse  this 
power,  and  what  reasonable  objection  exists  to 
giving  it?  We  may  well  borrow  this  expedient 
from  England.  This  is  one  of  many  things  in 
which  we  should  give  the  Courts  more  power. 

But  you  may  say  that  I  am  setting  too  high 
a  standard  for  the  lawyer,  a  standard  higher 
than  is  accepted  generally  by  the  Bar.  Very 
Ukely;  but  I  am  trying  to  show  you  why  the  Bar 
is  losing  ground  with  the  public,  and  it  may  well 
be  that  among  the  causes  is  the  fact  that  the 
standards  of  practice  are  too  low.  Be  not 
afraid,  however,  of  too  high  a  standard.  The 
danger  is  not  here.  Strive  as  we  may,  it  is 
impossible,  in  the  fierce  struggles  of  life,  in  the 
controversies  of  the  Bar,  in  the  heat  of  the  jury 
38 


CONDITIONS   OF   THE   PROBLEM 

trial,  not  to  fall  below  the  ideals  of  our  cooler 
moments.  Be  they  as  high  as  we  can  make  them, 
there  is  no  danger  that  our  practice  will  reach 
too  high  a  level.  What  is  true  of  every  man  in 
every  walk  of  Hfe  is  especially  true  of  the  lawyer, 
whose  temptations  are  pecuHarly  great. 

It  is  doubtless  hard  for  the  young  lawyer, 
who  must  have  work  or  starve,  to  say  that  he 
will  not  bring  a  suit  or  interpose  a  defence  which 
his  client  will  pay  him  for  doing.  When  refusal 
means  not  only  loss  of  money  which  is  sorely 
needed,  but  perhaps  exposes  him  to  the  con- 
tempt of  active  men  who  think  a  lawyer  should 
at  least  be  pliable,  it  is  very  hard  to  refuse. 
Yet  nothing  will  pay  the  lawyer  so  well  as  such 
a  refusal.  There  is  no  asset  so  precious  to  him 
as  character.  "Remember,  young  man,"  said 
Charles  Sumner,  "that  character  is  everything." 
There  is  always  a  demand  for  honesty.  No 
matter  how  unscrupulous  a  man  may  be  in  his 
business,  no  matter  how  much  he  may  value 
the  services  of  a  rascal  in  furthering  his  own 
39 


REFORM  OF  LEGAL  PROCEDURE 

rascality  during  his  life,  —  when  he  comes  to 
die  he  wishes  to  leave  his  property  in  honest 
hands  for  the  sake  of  his  wife  and  his  children. 
The  majority  of  men  —  I  think  the  large  major- 
ity— are  honest  and  love  honest  men.  The 
lawyer  who  stands  in  a  community  for  incor- 
ruptible honesty  acquires  an  influence  which  is 
invaluable,  When  it  is  known  that  his  presence 
in  Court  means  that  he  thinks  his  client  right, 
that  mere  presence  has  great  weight  with  jury 
or  with  Court.  The  services  of  such  a  man  are 
sought  by  all,  and  the  cHent  is  fortunate  who 
secures  them.  Positions  of  honor  and  trust  seek 
him,  and  if  his  success  is  slow,  it  is  sure  and 
lasting.  To  such  men,  only,  come  the  highest 
rewards  of  our  profession. 

Do  you  want  an  example  of  this  truth?  Let 
me  give  you  Abraham  Lincoln,  of  whom  his 
biographer  says: 

"He  was  preeminently  the  honest  lawyer,  the 
counsel  fitted  to  serve  the  htigant  who  was 
justly  entitled  to  win.  .  .  .  He  generally  refused 
40 


CONDITIONS   OF  THE   PROBLEM 

to  take  cases  unless  he  could  see  that,  as  a  matter 
of  genuine  right,  he  ought  to  win.  People  who 
consulted  him  were  at  times  bluntly  advised 
to  withdraw  from  an  unjust  or  a  hard-hearted 
contention,  or  were  bidden  to  seek  other  counsel. 
He  could  even  go  the  length  of  leaving  a  case, 
while  actually  conducting  it,  if  he  became  satis- 
fied of  unfairness  on  the  part  of  his  client.  .  .  . 
Those  who  are  not  members  of  this  ingenious 
profession,  contemning  the  fine  logic  which  they 
fail  to  overcome,  stubbornly  insist  upon  admiring 
the  lawyer  who  refuses  to  subordinate  right  to 
law." 

It  was  thus  that  he  acquired  the  title  of 
"honest  old  Abe,"  and  under  that  title  he  won 
the  Presidency  of  the  United  States.  By  that 
sign  he  conquered.  We  cannot  all  be  Presidents, 
but  the  course  which  gave  him  that  great  ofiice 
may  win  for  each  of  us  the  smaller  measure  of 
success  to  which  we  are  respectively  entitled. 
Honesty  may  not  win,  but  dishonesty  must  in 
the  long  run  lose.  "Corruption  wins  not  more 
41 


REFORM  OF  LEGAL  PROCEDURE 

than  honesty,"  says  Shakespeare,  and  it  should 
be  added,  that  what  corruption  wins  is  not 
worth  winning.  Full  many  an  old  man,  both 
in  and  out  of  our  profession,  would  give  all 
the  wealth  that  he  has  gained  in  exchange 
for  the  respect  of  his  fellows  and  the  confi- 
dence of  the  conmiunity,  which  he  forfeited  in 
gaining  it. 

But  there  is  another  sin  of  the  Bar,  deep- 
rooted  in  our  imperfect  human  nature,  which 
is  responsible  for  much  unnecessary  delay.  It 
has  been  said  by  many,  and  every  old  lawyer 
recognizes  its  truth,  that  no  man  however  well 
prepared,  however  confident  of  success,  how- 
ever sincerely  he  may  insist  upon  a  trial,  ever 
fails  to  feel  a  sense  of  relief,  when,  against  his 
most  earnest  efforts,  the  trial  is  postponed.  It 
is  the  only  professional  defeat  which  a  lawyer 
accepts  with  equanimity,  nay  even  with  grati- 
tude. You,  gentlemen,  as  students  have 
learned  to  know  and  dread  an  examination. 
A  trial  is  a  severe  competitive  examination, 
42 


CONDITIONS   OF  THE   PROBLEM 

not  lasting  for  a  few  hours,  with  results  that 
attract  no  public  attention,  but  lasting  some- 
times for  weeks,  under  the  public  eye,  involv- 
ing to  the  counsel  engaged  their  reputations 
for  skill  and  abiUty,  and  calling  upon  every 
resource  that  the  combatants  can  command. 
It  means  long  days  under  the  severest  strain 
upon  eye,  ear,  nerves,  and  temper;  it  means 
long  evenings  of  labor  on  evidence  or  law;  it 
means  sleepless  nights ;  it  means  being  absolutely 
possessed  by  one  subject  to  the  exclusion  of 
every  other  thought  while  the  trial  lasts,  and 
it  may  well  mean  at  the  end  a  defeat  which  is 
felt  to  be  unmerited,  followed  by  a  period  of 
exhaustion,  and  idle  criticism  of  self,  opponents, 
jurors,  witnesses,  and  judges.  This  is  an  ordeal 
which  a  man  dislikes  to  face,  and  experience 
does  not  make  it  more  attractive.  The  young 
lawyer  rushes  into  court,  confident  in  the  jus- 
tice of  his  cause.  His  older  brother  is  dragged 
in,  knowing  how  uncertain  the  result  of  a  trial 
always  must  be,  never  so  much  alarmed  as  when 
43 


REFORM  OF  LEG.\L  PROCEDURE 

his  case  seems  absolutely  sure  and  he  can  see  no 
ground  on  which  his  opponent  can  win.  He  real- 
izes, with  Mr.  Justice  Curtis,  that  "Every  new 
witness  is  a  new  peril,"  and  he  knows  all  the 
chances  of  battle.  Is  it  surprising  that  post- 
ponements are  easily  arranged,  and  that  hard 
cases  are  long  delayed?  When  the  opposing 
counsel  asks  for  delay,  because  his  convenience 
or  his  other  engagements  or  his  need  of  rest  make 
it  desirable,  it  is  very  hard  to  refuse.  Profes- 
sional courtesy  is  appealed  to,  and,  as  he  who 
draws  the  sword  shall  perish  by  the  sword,  so  he 
who  refuses  his  associates  such  favors  may  find 
his  own  requests  denied  at  some  moment  of 
supreme  exigency.  Thus  we  get  into  the  habit 
of  readily  consenting  to  delay  for  the  convenience 
of  counsel  at  the  expense  of  cUents. 

This  is  a  very  serious  evil.  Some  time  ago,  a 
man  sought  me,  and  said  that  certain  former 
partners  owed  him  $150,000,  but  refused  to  pay 
it,  and  a  suit  for  the  settlement  of  his  accounts 
had  been  pending  for  six  years.  On  the  opposite 
44 


CONDITIONS   OF   THE   PROBLEM 

sides  were  engaged  two  leading  seniors  and  two 
very  able  and  very  busy  juniors.  When  one 
senior  was  at  home,  he  said,  the  other  was  away; 
when  one  junior  was  at  liberty  the  other  was 
engaged  in  a  trial,  and  the  result  was  that 
appointment  after  appointment  for  hearing  was 
made  and  broken,  and  perhaps  two  or  three  days 
out  of  a  year  were  actually  given  to  the  trial 
of  the  case  before  a  Master.  Meanwhile,  he 
was  growing  older,  crippled  by  not  having  his 
money,  and  wholly  unable  to  see  a  way  out  of  his 
diflSculties.  He  asked  me  what  he  was  to  do, 
and  whether  I  would  take  his  case.  I  told  him 
that  I  could  not  do  so.  He  had  as  able  counsel 
as  there  were  at  the  Bar,  and  I  could  not  dis- 
place them.  They  were  thoroughly  familiar  with 
his  case,  and  I  could  add  nothing,  while  it  would 
cost  much  to  give  me  the  knowledge  of  his  case 
which  they  had.  I  could  only  advise  him  that 
he  must  make  himself  peculiarly  disagreeable 
to  his  counsel  until  they  tried  the  case.  This 
is  merely  an  illustration  which  may  enable  you  to 
45 


REFORM  OF  LEGAL  PROCEDURE 
tell    why    the    public    complams    of    the    law's 
delay. 

Conscious  as  I  am  of  my  own  weakness,  I 
can  suggest  no  remedy  for  this  evil  other  than 
the  cultivation  of  a  higher  standard  among  the 
members  of  the  Bar.  Laziness,  a  certain  coward- 
ice, and  the  conflicting  demands  of  numerous 
cUents,  are  the  causes  of  this  delay.  In  such 
matters,  the  Bar  should  adopt  the  rule  of  Lord 
Brougham,  and  if  the  interests  of  the  client 
demand  a  speedy  trial,  no  convenience  of  his  own 
or  his  opponent's,  no  laziness,  no  cowardice,  should 
relax  his  efforts  to  speed  the  cause.  Courtesy 
to  his  professional  brother  may  well  be  cruelty 
to  the  man  whose  interests  are  confided  to  his  care, 
and  should  not  prevail.  The  remedy  for  delays 
thus  caused  is  a  keener  professional  conscience. 

A  most  prolific  cause  of  delay  in  reaching  a 
trial  is  found  in  the  conflicting  engagements  of 
counsel.  As  an  eminent  lawyer  once  remarked, 
as  the  result  of  long  experience:  "I  have  never 
found  any  court  that  could  compel  me  to  be  in 
46 


CONDITIONS  OF  THE   PROBLEM 

two  places  at  the  same  time."  The  clients  of  a 
busy  lawyer  perhaps  cannot  complain  if  they 
have  to  take  their  turns.  They  employ  him  with 
their  eyes  open,  for  the  same  reason  that  others 
want  him.  His  opponents,  however,  have  no 
choice,  and  a  client  may  often  secure  long  delay, 
simply  by  employing  a  counsel  who  is  much 
engaged.  It  is  very  difficult,  in  practice,  to 
force  such  a  lawyer  into  the  trial  of  any  case  that 
he  does  not  wish  to  try,  for  he  can  always  choose 
some  other  engagement,  at  least  for  a  consider- 
able time.  To  quote  the  words  of  a  commission 
appointed  in  Massachusetts  last  year  to  consider 
and  report  on  delay  in  civil  actions:  "A  busy 
lawyer  may  by  reason  of  his  numerous  engage- 
ments readily  render  impossible  the  trial  of  a 
particular  case  which  his  adversary  wishes  to 
try."  In  England,  the  courts  do  not  recognize 
an  engagement  in  one  court  as  a  reason  for  not 
tr)dng  a  case  when  it  is  reached  in  another  court. 
The  result  is  that  clients  suffer  in  another  way, 
for  as  no  lawyer,  when  he  is  retained,  can  abso- 
47 


REFORM  OF  LEGAL  PROCEDURE 

lutely  foresee  what  his  engagements  may  be 
when  the  case  is  called  for  trial,  clients  engage 
two  barristers,  senior  and  junior,  that  the  junior 
may  try  the  case  if  the  senior  happens  to  be 
engaged.  Thus  they  may  pay  for  the  services 
of  a  lawyer,  and  not  get  what  they  pay  for, 
while  the  expense  is  increased  by  the  necessity 
of  employing  two  counsel.  I  think,  however, 
that  this  rule,  if  persisted  in,  will  work  well  in 
the  end.  Clients  will  not  long  pay  for  what  they 
do  not  get,  and  either  counsel  and  court  will  so 
arrange  assignments  as  to  avoid  conflicts,  or 
lawyers  will  not  assume  obUgations  which  they 
cannot  fulfil  and  practice  will  be  distributed 
more  widely.  "Where  there's  a  will,  there's 
a  way."  There  are  many  cases  which  require 
only  ordinary  professional  skill,  and  coimsel 
with  large  practice  will  employ  such  assist- 
ance as  is  necessary  to  deal  with  it  promptly, 
instructing  their  juniors  in  many  cases,  and 
reserving  themselves  for  such  as  call  for  greater 
ability   or   experience.     Were    the    Courts    less 


CONDITIONS  OF  THE  PROBLEM 

ready  to  accept  the  excuse  of  another  en- 
gagement, the  Bar  would  be  driven  to  find  a 
remedy,  and  it  might  be  well  to  try  the 
English  rule. 


49 


II 

THE  REDUCTION  OF  LITIGATION  BY 
LEGISLATION 

\  FTER  giving  full  effect  to  all  the  causes 
-*■  ^  which  I  have  thus  far  suggested,  there 
remains  the  congestion  of  the  docket,  the  fact 
that  cases  are  brought  far  faster  than  they  can 
be  tried,  and  the  inevitable  accumulation  of 
work.     What  is  the  remedy  for  this? 

The  first  remedy  which  I  would  suggest  is  the 
removal,  by  proper  legislation,  of  what  causes 
litigation.  Years  ago,  the  courts  were  largely 
occupied  with  disputes  about  the  boundaries  of, 
or  title  to  real  estate.  We  find  the  traces  of 
this  litigation  in  the  novels  and  light  literature  of 
the  day,  as  when  Dandie  Dinmont  was  anxious  to 
have  a  lawsuit  with  his  neighbor  over  a  few  feet 
of  land,  enough,  as  he  said,  "to  feed  a  hog  or 
50 


REDUCTION  OF  LITIGATION 

aiblins  twa  in  a  good  year."  The  registration  of 
deeds,  with  good  surveying  and  careful  examina- 
tion of  titles,  has  ended  this  so  completely  that 
litigation  of  this  kind  has  almost  disappeared. 
Some  forty  years  ago  when  I  entered  perhaps 
the  busiest  office  in  Boston,  there  was  no  real 
action  on  its  large  docket,  nor  in  many  years  of 
active  practice  since  have  I  ever  been  asked 
to  bring  or  defend  such  an  action. 

Not  so  many  years  ago,  suits  against  insurance 
companies  were  very  common.  Now,  owing  in 
part  to  more  carefully  drawn  policies,  and  in 
part  to  the  fact  that  companies  which  contest 
claims  lose  business,  insurance  cases  are  rare. 
Such  disputes  are  settled  by  agreement  or 
arbitration. 

To-day,  actions  to  recover  damages  for  personal 
injuries  choke  the  courts.  They  have  increased, 
and  are  increasing,  at  a  rate  entirely  out  of 
proportion  to  the  increase  of  population.  In 
Boston,  such  suits  against  street  railways  con- 
sume three  quarters  at  least  of  the  time  given 
SI 


REFORM  OF  LEGAL  PROCEDURE 

to  jury  trials,  while  much  of  the  remainder  is 
occupied  with  suits  against  other  carriers,  and 
suits  by  employees  against  their  employers. 
This  litigation,  from  every  point  of  view,  is 
wasteful  and  injurious  to  the  community.  A 
person  injured  by  an  accident  and  obliged  to 
sue  for  damages,  knows  that  on  the  extent  and 
permanence  of  the  injury  depends  the  amount 
of  the  verdict,  and  hence  until  the  case  is  ended 
is  reasonably  certain  to  languish.  During  the 
whole  interval  between  suit  and  trial,  he  is 
preparing  his  case,  watching  his  symptoms, 
registering  his  uncomfortable  feelings,  and,  in 
short,  exactly  reversing  the  process  by  which 
professors  of  Christian  Science  cure  their  patients. 
He  cannot  afford  to  feel  well,  much  less  to  recover 
entirely,  and  good  doctors  agree  that  in  these 
circumstances  imagination  increases  the  victim's 
ills,  and  retards  or  even  prevents  his  recovery. 
A  man  who  wishes  to  get  well  will  often  do  so, 
when  one  who  does  not  may  become  a  perma- 
nent invalid.  If  the  trial  results  in  defeat,  this 
52 


REDUCTION  OF  LITIGATION 

evil  consequence  remains,  unmitigated  by  dam- 
ages and  very  likely  increased  by  the  charges  of 
the  lawsuit.  If,  on  the  other  hand,  he  recovers 
damages,  the  share  which  he  gets  seems  affluence 
and  is  often  spent  recklessly,  while  the  period 
between  the  accident  and  the  end  of  the  money 
recovered  destroys  the  habits  of  work  and 
thrift,  and  the  real  injury  is  multiplied  many 
fold  by  the  whole  process.  I  remember  once 
hearing  the  question  raised  in  a  large  party  of 
leading  lawyers  familiar  with  such  cases,  whether 
the  recovery  of  damages  in  an  accident  suit 
benefited  the  successful  suitor,  and  with  one 
accord  they  agreed  that  they  had  never  known 
a  case  where  the  damages  had  really  done  any- 
thing but  harm. 

The  prosecution  of  such  suits  becomes  a 
business  by  itself,  and  in  every  large  community 
there  are  lawyers  with  offices  equipped  to  gather 
and  press  such  claims.  They  have  runners  who 
visit  the  injured,  doctors  who  send  them  cases 
and  testify  for  the  claimants,  experts  upon  whom 
53 


REFORM  OF  LEGAL  PROCEDURE 

they  rely,  and  if  we  believe  all  that  is  said  by 
their  enemies,  they  have  also  false  witnesses, 
who  testify  at  safe  intervals  to  having  seen  the 
essential  facts,  and  secret  methods  of  reaching 
jurors.  These  men  prevent  amicable  adjust- 
ments, inflate  the  injured  person's  ideas  of 
damages,  and  regard  their  clients  too  often  only 
as  a  means  of  extorting  money  from  some  other 
person  for  their  own  benefit.  Their  business  is 
frequently  legalized  piracy,  and  they  plunder 
both  clients  and  opponents. 

The  medical  profession  is  much  exercised  over 
the  manner  in  which  medical  questions  are  tried, 
and  mortified  by  the  credence  given  to  charlatans 
who  pose  as  doctors.  More  and  more  the  best 
physicians  hesitate  to  testify  as  witnesses,  because 
they  cannot  afford  to  waste  their  time  in  court 
waiting  to  be  called,  because  they  resent  the 
cross-examination  to  which  they  are  exposed,  and 
because  they  dislike  to  become  known  as  pro- 
fessional experts,  recalling  perhaps  the  dictum 
of  the  English  judge  who  said  there  are  three 
54 


REDUCTION  OF  LITIGATION 

classes  of  false  witnesses:  "Liars,  damned  liars 
and  experts."  The  system  tends  steadily  to 
drive  the  competent  physician  out  of  court,  and 
to  bring  the  incompetent  in.  The  circumstances 
and  results  of  the  accident  often  excite  warm 
sympathy,  and  the  jurymen  are  urged  to  com- 
pensate one  who  needs  money  at  the  expense  of 
a  rich  employer  without  regard  to  the  merits  of 
the  case,  and  so  to  disregard  their  oaths. 

In  a  word,  the  system  degrades  the  members  of 
two  great  professions,  the  legal  and  the  medical; 
it  chokes  the  courts  with  lawsuits  of  which  one 
half  are  without  merit,  it  demoraUzes  the  juries, 
and  it  injures  even  the  successful  litigant.  More- 
over, it  chills  the  natural  sympathy  which  might 
be  felt  for  the  injured  person,  and  breeds  hos- 
tility between  employer  and  employee,  since  the 
employer  is  afraid  to  help,  lest  his  doing  so  be 
regarded  as  an  admission  of  liability,  while  the 
absence  of  such  help  is  naturally  treated  by  the 
victim  as  evidence  of  indifference  to  his  sufferings. 

Finally,  the  system  entails  an  enormous  expense 
55 


REFORM  OF  LEGAL  PROCEDURE 

on  the  community.  The  cost  of  a  single  jury 
session  in  Boston  is  estimated  by  the  Commission 
of  which  I  spoke  at  $30,000  a  year  in  the  salaries 
of  judge,  clerk,  court  officers,  and  jurors'  fees, 
alone.  If  we  add  to  this  the  incidentals,  fire, 
light,  cleaning,  repairs,  and  the  interest  on  the 
large  sum  spent  in  providing  and  maintaining 
the  courtroom,  the  total  is  far  greater.  There 
were  seven  such  sessions  in  the  Superior  Court  of 
Boston  alone,  in  the  year  1909,  and  more  than 
three  quarters  of  their  time  was  spent  in  trying 
615  tort  cases,  of  which  210  resulted  in  verdicts 
for  the  plaintiff  and  58  were  settled  during  the 
trial.  There  were  30  disagreements,  and  in  the 
other  317  cases  the  verdicts  were  for  the  defend- 
ant, so  that  judged  by  results  more  than  half 
the  claims  which  were  brought  to  trial  were 
unfounded.  The  recoveries  in  the  other  cases 
were  generally  small,  and  although  the  figures 
were  not  tabulated,  I  think  it  safe  to  say  that 
the  total  amount  recovered  by  the  successful 
plaintiffs  was  less  than  the  sum  paid  by  the 
56 


REDUCTION  OF  LITIGATION 

taxpayers  of  Boston  for  trying  their  cases.  Add 
to  this  the  amount  paid  lawyers,  witnesses, 
experts,  stenographers,  and  for  various  inci- 
dentals by  the  parties  on  both  sides,  and  the 
amount  spent  to  accompUsh  this  result  is  enor- 
mously increased. 

Nor  does  the  account  end  here.  The  danger 
of  loss  from  accident  claims  has  led  almost  all 
large  employers  of  labor  and  most  prudent 
citizens  to  insure  themselves  against  liabiUty 
for  such  claims,  and  the  total  amount  paid  in 
premiums  is  very  large.  Some  idea  of  its  amount 
may  be  derived  from  the  report  made  last  March 
to  the  Legislature  of  New  York,  by  a  special 
Commission.  This  shows  that  nine  companies 
in  three  years  received  in  premiums  more  than 
twenty-three  and  a  half  million  dollars,  of  which 
they  paid  for  claims  covered  by  the  insurance 
only  about  eight  and  a  half  millions,  or  36.34  per 
cent,  of  what  they  received.  The  rest  went  to 
men  employed  as  counsel  or  otherwise  to  defeat 
the  claims  or  solicit  new  business,  to  the  cost  of 
57 


REFORM  OF  LEGAL  TROCEDURE 

administration  and  to  profit.  The  community 
therefore  contributes  every  year  an  enormous 
fund,  partly  in  taxes  and  partly  in  premiums  to 
insurance  companies,  and  of  this  only  a  very 
small  percentage  goes  to  the  parties  injured. 

These  expenses  when  paid  out  of  the  taxes  are 
a  direct  burden  on  the  community.  When  paid 
by  the  employer  they  are  an  expense  of  his 
business,  and  a  goodly  portion  of  them  certainly 
finds  its  way  into  the  price  charged  for  his  goods. 
In  this  way  the  community  again  pays.  The 
disabled  workman  who  has  recovered  no  com- 
pensation, and  the  disabled  workman  who  has 
spent  his  money  recklessly,  with  his  family, 
often  become  charges  upon  public  or  private 
benevolence,  and  thus  again  the  loss  falls  upon 
the  public,  so  that  a  considerable  fraction  of 
what  we  call  "the  high  cost  of  Hving"  can 
certainly  be  traced  to  the  waste  and  expense 
caused  by  accidents  to  workmen. 

On  the  other  hand,  it  is  right  —  nay,  more,  it 
is  necessary  that  men  who  are  injured,  certainly 
58 


REDUCTION  OF  LITIGATION 

those  who  are  permanently  disabled  by  accidents, 
should  be  supported.  We  cannot  leave  them 
to  perish.  The  line  between  the  accidents  for 
which  the  employer  is  liable,  and  those  of  which 
the  employee  must  bear  the  consequences,  is  not 
easy  to  draw.  The  questions  of  fact  are  close, 
the  evidence  is  conflicting.  The  plaintiff's  path 
is  beset  "with  pitfall  and  with  gin."  The  trial 
judge  and  the  appellate  court  often  differ  as  to  the 
law,  the  jury  often  differs,  and  while  disagree- 
ments are  comparatively  rare^  the  difference 
finds  expression  in  reduced  damages.  When  the 
courts  first  held  that  a  judge  might  direct  a 
verdict  for  the  defendant,  if  there  was  no  evi- 
dence of  neglect  by  the  defendant,  or  was  clear 
evidence  of  contributory  neglect  by  the  plaintiff, 
but  in  doubtful  cases  must  submit  the  case  to 
the  jury,  counsel  in  arguing  asked  the  Court: 
"Do  your  Honors  mean  to  hold  that  the  easy 
cases  are  for  the  Court  and  the  hard  cases  for 
the  jury?"  This  in  a  nutshell  states  the  rule. 
In  many  cases  there  is  no  negUgence  on  either 
59 


REFORM  OF  LEGAL  PROCEDURE 

side,  but  a  pure  accident  which  no  one  could 
reasonably  anticipate,  as  when  a  workman  going 
to  a  pile  of  scrap  iron,  which  he  was  expected 
to  use  as  needed,  in  pulling  out  a  piece  released  a 
steel  spring,  which,  striking  him  in  the  eye,  put  it 
out  and  so  disabled  a  fine  young  man  for  life. 
Some  fellow-workman  had  thrown  the  spring  on 
the  pile. 

In  the  great  iron  mills,  in  the  mines,  in  great 
manufacturing  establishments  of  every  kind,  a 
more  or  less  steady  percentage  of  the  workmen 
are  killed  or  disabled,  and  to  put  the  matter  on 
the  lowest  plane,  this  loss  should  be  treated  as 
an  expense  of  the  business,  to  be  paid  and 
reckoned  in  the  price  of  goods  as  much  as  the 
destruction  of  machinery,  the  wearing  out  of 
tools,  the  spoiling  of  materials,  or  any  other 
thing  which  may  be  covered  by  the  wear  and 
tear  of  plant. 

When  to  the  mere  material  considerations  we 
add  the  moral  obligation  to  help  our  fellow  men 
in  distress,  the  argument  is  overwhelming. 
60 


REDUCTION  OF  LITIGATION 

The  question  is,  how  to  save  the  present 
enormous  waste,  and  how  to  secure  the  injured 
employee  proper  compensation  without  injustice 
to  his  employer.  If  we  can  de\dse  a  scheme  by 
which  the  money  which  the  employer  now  pays 
for  insurance  or  for  expenses  and  losses,  the 
money  which  the  injured  man  pays  for  counsel 
and  the  other  costs  of  litigation,  and  the  money 
which  the  community  pays  for  the  judges, 
jurors,  and  others  whose  time  is  spent  in  deahng 
with  these  questions,  or  for  supporting  helpless 
workmen  and  their  families,  can  be  used  directly 
to  provide  for  the  victims  of  accident,  the  gain 
to  the  general  body  of  citizens  in  every  way  will 
be  enormous,  and  the  saving  in  money  alone  may 
well  be  large.  To  this  problem  the  people  of  every 
country  where  industrial  development  is  con- 
siderable are  devoting  much  time  and  thought, 
and  this  country  among  others  is  studying  it. 
The  solution  is  not  yet  found,  and  you,  gentle- 
men, will  be  confronted  with  it  when  you  begin 
practice.  In  your  time  it  will  be  settled,  prob- 
6i 


REFORM  OF  LEGAL  PROCEDURE 

ably,  and  some  of  you  may  win  fame  by  con- 
tributing to  this  settlement.  Upon  you  all  will 
rest  the  duty  of  trying. 

With  us  the  problem  is  comphcated  by  two 
considerations. 

First,  the  power  of  our  legislatures  is  fettered 
by  constitutional  restrictions,  and 

Second,  no  state  can  afford  to  lay  upon  its 
citizens  who  employ  labor  a  greater  burden  than 
is  imposed  by  other  states  upon  their  citizens, 
lest  capital  seek  the  state  where  the  burden  is 
lightest. 

To  a  certain  extent,  the  last  consideration 
applies  between  the  competing  nations  of  Europe. 
They  seek  the  same  markets,  and  Germany  can- 
not afford  to  make  the  manufacturing  cost  of 
goods  greater  than  it  is  in  England  or  France. 
But  it  is  not  so  easy  to  move  a  manufacturing 
plant  and  its  operatives  from  Germany  to 
France,  as  it  is  to  move  it  from  Massachusetts 
to  Maine  or  New  Hampshire. 

On  the  other  hand,  a  good  law  adopted  in 
62 


REDUCTION  OF  LITIGATION 

one  state  spreads  rapidly  over  the  country;  the 
demand  of  the  laborer  for  the  best  law  is  a 
force  which  influences  every  legislature,  and 
while  the  necessity  of  uniform  legislation  may 
delay,  it  cannot  prevent  a  proper  solution  of  the 
problem.  It  is  so  obviously  demanded  by  every 
consideration,  moral  and  economic,  that  the 
strong  common  sense  of  the  American  people 
will  find  it. 

Within  the  hmits  of  these  lectures  it  is  impos- 
sible to  discuss  the  various  systems  adopted  or 
proposed  in  different  countries  or  states,  but  some 
general  suggestions  may  be  made.  No  constitu- 
tion prevents  men  from  contracting  freely  with 
each  other,  and  we  may  first  consider  what  may 
be  done  by  contracts  of  workmen  with  each 
other,  of  employers  with  each  other,  and  of 
workmen  with  employers. 

We  find,  in  the  first  place,  a  large  body  of 

insurers  who  stand  ready  for  a  certain  premium 

to    insure  any  man    against  accident    whether 

caused  by  his  carelessness  or  not.     Could   an 

63 


REFORM  OF  LEGAL  PROCEDURE 

adequate  fund  be  raised  to  pay  the  premiums 
necessary  to  insure  every  workman  against 
accident,  so  that  he  would  be  sure  to  receive  a 
fixed  sum  in  case  of  injury,  the  same  provision 
would  be  made  for  him  and  his  family  that  the 
ordinarily  prudent  man  makes  when  he  insures 
his  life  or  takes  out  a  poKcy  against  accidents, 
and  the  workman  might  well  agree  to  accept 
this  certainty  in  place  of  the  uncertainty, 
anxiety,  expense,  and  other  evils  which  attend 
his  present  right  to  sue  his  employer.  Where 
is  this  premium  fund  to  be  found? 

In  the  first  place,  a  certain  contribution 
might  be  made  out  of  his  wages  by  the  work- 
man himself.  It  is  not  too  much  to  ask  that 
every  man  make  some  provision  against  the 
chances  of  life,  or  in  the  common  phrase,  "lay 
up  something  for  a  rainy  day."  To  do  this  is 
to  encourage  habits  of  thrift  which  are  in 
themselves  desirable,  to  say  nothing  of  other 
advantages.  There  are  now  mutual  benefit 
associations,  burial  societies,  and  like  organiza- 
64 


REDUCTION  OF  LITIGATION 

tions,  to  which  workmen  contribute,  the  general 
plan  being  that  each  member  pays  a  small 
more  or  less  regular  assessment  thus  creating 
a  fund  out  of  which  salaries  and  expenses  are 
provided,  and  when  members  die  or  are  dis- 
abled, certain  sums  are  paid  to  themselves  or 
their  famihes.  As  a  rule,  the  assessment  which 
is  sufficient  when  members  are  numerous  and 
young,  is  likely  to  be  too  small  as  the  original 
members  grow  old  and  deaths  are  more  fre- 
quent, and  these  associations  perish  because 
their  mathematical  calculations  are  wrong,  in 
which  event  the  surviving  members  lose.  This 
method  of  insurance  is  unwise  and  uneconomi- 
cal, and  the  money  spent  in  it  can  be  spent 
more  wisely.  Under  a  proper  system  such  con- 
tributions as  these  might  be  made  the  nucleus 
of  the  premium  fund. 

Among  enlightened  employers,  the  system  of 

profit-sharing  as  a  means  of  giving  the  workman 

adequate  wages  is  becoming  more  common,  and 

from    the    money    which    the    workmen    would 

65 


REFORM  OF  LEGAL  PROCEDURE 

receive  under  this  system,  something  might  well 
be  taken  to  increase  it.  The  money  which  the 
employer  now  pays  for  liability  insurance  and 
for  the  expenses  connected  with  claims  by 
workmen  might  be  added  to  the  fund  without 
in  the  least  enhancing  his  present  expense. 

Moreover,  by  association  between  employers 
in  different  lines  of  business,  mutual  insurance 
companies  could  be  formed  which  would  lessen 
the  individual  risk  and  the  total  expense.  For 
insurance  against  fire,  such  mutual  insurance 
companies  have  existed  for  years,  and  have 
accomplished  the  most  excellent  results.  They 
have  compelled  parties  who  sought  insurance  to 
take  proper  precautions  against  fire,  and  having 
studied  the  causes  of  fire  and  the  methods  of 
prevention,  they  have  been  able  to  point  out  in 
each  case  what  must  be  done.  This  system  has 
naturally  reduced  the  loss  by  fire,  and  as  a  result 
the  cost  of  insurance  has  become  almost  nominal 
to  the  parties  insured  in  these  companies.  As 
no  manufacturer  can  afford  to  pay  more  for 
66 


REDUCTION  OF  LITIGATION 
insurance  or  any  other  expense  of  his  business 
than  his  competitors,  all  desire  to  become  mem- 
bers of  the  mutual  companies,  and  to  do  this  all 
must  comply  with  the  requirements  of  these 
companies. 

Were  the  same  system  adopted  for  insurance 
against  accident,  there  would  be  a  thorough 
inspection  of  the  premises  occupied  by  an  appli- 
cant for  insurance,  and  he  would  be  required 
by  protecting  his  machines  and  in  other  ways 
to  take  proper  precautions.  The  causes  of 
accident  would  be  studied  carefully,  and,  as 
in  the  case  of  fire,  new  precautions  would  be 
devised  from  time  to  time.  Regular  inspec- 
tion by  the  agents  of  the  insurance  companies 
would  insure  the  observance  of  proper  rules,  and 
as  a  result  the  number  of  accidents  would  be 
reduced  and  consequently  the  cost  of  insurance. 
The  employer  would  find  it  wise  to  do  what  the 
insurance  company  required  in  order  to  reduce 
the  cost  of  insurance,  and  the  standard  of  care 
which  such  an  insurance  company  should  fix, 
67 


REFORM  OF  LEGAL  PROCEDURE 

would  become  the  standard  by  which  in  case  of 
accident  every  employer  would  be  judged. 

Not  only  would  the  necessary  contribution  to 
the  premium  fund  be  reduced  by  diminishing  the 
chances  of  accident,  but  in  other  ways.  The 
insurer  against  liabiUty  for  accident  now  includes 
in  his  premium  not  only  what  is  needed  to  pay 
losses,  but  also  what  is  needed  to  pay  the  expenses 
of  resisting  claims,  and  his  own  profit.  These 
two  items  with  the  expenses  of  management 
take  some  65  per  cent,  of  the  premium.  If, 
however,  the  insurer  agreed  to  pay  a  definite 
sum  in  case  of  accident  whether  caused  by 
negligence  or  not,  the  expense  of  resisting 
claims  would  be  largely  eliminated,  and  as  the 
profit  of  the  mutual  company  is  used  to  reduce 
premiums,  this  also  would  disappear.  Hence  the 
premium  required  would  on  these  accounts  be 
reduced,  while  the  absolute  hability  might  make 
the  losses  greater  and  so  increase  the  premium, 
unless,  as  has  happened  with  fires,  the  precau- 
tions against  accident  which  the  mutual  com- 
68 


REDUCTION  OF  LITIGATION 

pany  required  should  reduce  the  number  of 
accidents  enough  or  more  than  enough  to  offset 
the  loss  from  greater  habiUty.  It  should  be 
borne  in  mind  that  the  employer's  premium  is 
now  fixed  by  considerations  drawn  from  experi- 
ence with  many  unconnected  employers,  and 
that  having  paid  it  he  is  somewhat  indifferent 
to  accidents.  If  every  accident  increased  the 
expense  of  insurance,  all  employers  would  be 
more  careful.  It  is  probable  that  the  em- 
ployer's contribution  to  our  premium  fund 
might  be  less  than  he  now  pays  for  insurance 
against  liability. 

We  have,  so  far,  as  contributors  to  the  fund, 
the  employee  and  the  employer.  Might  not  the 
State  also  contribute?  If  the  argument  is  sound, 
the  State  will  save  much  in  the  expense  of  courts 
and  much  in  the  support  of  the  poor.  It  will 
gain  also  something  through  the  removal  of  one 
cause  which  produces  friction  and  bad  relations 
between  employer  and  employed.  Can  it  pro- 
perly be  asked  out  of  these  savings  to  pay  any- 
69 


REFORM  OF  LEGAL  PROCEDURE 

thing  towards  the  premium  fund?  Suppose  the 
general  scheme  of  mutual  insurance  is  extended 
so  as  to  cover  disability  caused  by  age  as  well  as 
by  accident,  so  that  in  a  way  it  provides  an  old 
age  pension.  This  is  delicate  ground,  but  it  must 
be  remembered  that  every  poorhouse  contains 
its  old  age  pensioners.  Out-door  reUef  is  often 
only  an  old  age  pension.  The  helpless  are  sup- 
ported, if  by  no  one  else,  by  the  public.  Could 
not  this  relief  be  given  through  pubUc  contri- 
bution to  a  system  which  would  provide  for  such 
pensioners?  The  State  now  takes  money  from 
the  taxpayer,  and  gives  it  to  persons  who  from 
age,  disease,  accident,  and  often  from  their  own 
vice  or  improvidence,  are  unable  to  support 
themselves.  It  supports  those  who,  disabled  by 
accident,  have  failed  to  get  damages  from  their 
employers,  and  perhaps  some  of  those  who 
having  succeeded  have  spent  their  damages.  It 
is  in  the  last  resort  an  insurer  against  want, 
and  its  losses  are  paid  from  pubHc  funds 
through  one  set  of  agents,  —  the  pubUc  officers, 
70 


REDUCTION  OF  LITIGATION 

whether  of  state,  city  or  town,  who  administer 
poor  relief.  Can  it  not  make  its  present  con- 
tribution through  other  agents,  and  perhaps 
insure  against  its  Uability  by  becoming  a  party 
to  such  a  scheme  of  mutual  insurance  as  I  have 
outlined,  with  proper  safeguards?  There  would 
seem  to  be  no  constitutional  objection  to  a 
measure  carefully  drawn  to  accomplish  this, 
but  if  there  is,  the  Constitution  may  be 
amended. 

Might  the  State  not  also  require  of  employers 
a  certain  standard  of  care,  and  impose  penalties 
for  any  failure  to  comply  with  such  require- 
ment, and  might  not  such  penalties  be  used  to 
increase  the  fund  of  which  I  am  speaking? 
The  careless  employer  costs  the  State  in  many 
ways,  especially  in  the  cost  of  courts  and  poor 
reUef.  Can  he  not  be  compelled  to  reimburse 
the  State  for  this  expense,  and  cannot  this 
reimbursement  be  used  so  as  to  reUeve  the 
State  from  the  burden  of  supporting  the  victims 
of  his  carelessness?  To  put  it  in  another  way, 
71 


REFORM  OF  LEGAL  PROCEDURE 

an  employer  of  labor  proposes  to  engage  in  a 
business  which  is  Hkely  to  entail  expense  on  the 
State  through  accident  to  his  employees,  which 
will  cause  either  the  expense  of  lawsuits  or 
the  cost  of  supporting  disabled  men  and  their 
families,  and  often  both.  The  State  can  offer 
the  employer  the  alternative  of  protecting  it 
against  these  expenses,  either  by  joining  in 
some  scheme  of  insurance  or  by  paying  a  heavy 
tax  which  could  be  imposed  on  all  employers  as 
a  class  who  did  not  insure.  Such  a  law  as  this 
must  be  constitutional. 

Much  of  what  has  been  suggested  can  be  done 
by  contracts  between  employer  and  employee 
and  a  mutual  insurance  company  of  employers, 
classifying  injuries  and  fixing  the  sum  which  the 
employee  shall  recover  according  as  his  injury 
belongs  to  one  class  or  another.  The  contract 
may  provide,  as  the  Mexican  law  does,  for  a  regu- 
lar periodical  payment,  either  for  a  definite  time 
or  pending  disability,  instead  of  a  single  payment. 
The  funds  of  the  organization  may  be  placed 
72 


REDUCTION  OF  LITIGATION 

under  State  control,  its  investments  may  be 
regulated  so  as  to  insure  safety,  and  the  State 
may  perhaps  agree  to  contribute.  The  whole 
commimity  is  of  necessity  a  mutual  insurance 
company,  and  the  burdens  which  this  relation 
creates  may  well  be  adjusted  by  proper  legisla- 
tion. The  tendency  everywhere  is  to  make 
proper  provision  for  age  and  disabiUty  in  part 
at  the  State's  expense. 

But  employers  may  refuse  to  enter  such 
organizations.  The  remedy  is  simple.  The 
State,  in  the  exercise  of  the  police  power,  now 
regulates  factories,  bakeries,  the  hours  of  labor, 
prescribes  safety  appliances,  insists  that  all  drugs 
sold  shall  conform  to  certain  standards  winch 
are  subject  to  more  or  less  frequent  change, 
fixes  the  quahty  of  milk  and  food,  and  legislates 
in  various  ways  to  promote  the  health  and  safety 
of  its  citizens.  It  is  easy  to  provide  that  every 
employer  must  take  the  precautions  required 
by  the  mutual  insurance  company  under  heavy 
penalties.  It  may  direct  that  his  business  may 
73 


REFORM  OF  LEGAL  PROCEDURE 

be  stopped  until  he  does  so,  as  the  State  now 
forces  the  owners  of  buildings  to  make  proper 
provision  against  fire.  It  may  make  it  in  this 
way  so  much  for  his  advantage  to  join  the 
organization  of  employers  that  he  cannot  afiford 
not  to  do  so. 

To  recapitulate  briefly,  there  is  money  enough 
spent  and  wasted  by  our  present  system,  and 
directly  or  indirectly  paid  by  the  community, 
to  create  a  fund  adequate  under  a  proper  system 
to  give  proper  compensation  to  every  workman 
injured  in  the  course  of  his  employment.  The 
more  carefully  this  problem  is  studied,  the  more 
certainly  will  this  appear.  What  is  needed  is  a 
plan  which  will  at  once  reduce  the  danger  of 
accident,  and  insure  the  direct  application  of 
what  the  community  pays  to  the  reUef  of  the 
injured  person.  Whatever  is  paid  on  this 
account  should  be  distributed  as  an  expense,  not 
of  one  employer,  but  at  least  of  all  engaged  in 
like  business  through  a  system  of  mutual  insur- 
ance, and  should  be  regarded  as  an  expense  of 
74 


REDUCTION  OF  LITIGATION 

the  business  which  enters  into  the  cost  of  the 
goods  made  or  work  done  by  the  employer,  and 
so  is  assessed  upon  the  community.  If  necessary, 
the  State  can  well  afford  to  contribute,  and  the 
question  is  how  to  frame  a  law  which  will  accom- 
pUsh  our  result.  It  has  been  done  in  Germany, 
to  the  great  reUef  of  the  courts,  and  it  should  be 
done  here.  Let  me  give  you  a  few  facts  as  to 
the  German  system,  to  be  found  in  the  last  annual 
report  issued  by  the  United  States  Bureau  of 
Labor,  as  condensed  by  a  correspondent  of  the 
Boston    Transcript  : 

"The  employers  defray  the  entire  cost  of  the 
accident  insurance,  and  it  includes  practically 
all  the  industrial  workers  in  the  country.  The 
most  striking  evidence  of  the  wide  scope  of  this 
system  is  contained  in  the  figures  for  the  opera- 
tions of  the  year  1908.  In  this  year,  the  number 
of  persons  insured  against  accident  was  about 
27,000,000,  the  total  receipts  were  about  $57,000,- 
000,  the  total  expenditures  were  about  $48,000,- 
000,  and  the  amount  of  the  reserve  was 
75 


REFORM  OF  LEGAL  PROCEDURE 

$65,000,000.  The  number  of  workmen  compen- 
sated for  the  first  time  in  the  year  1908  was 
143,000.  Separate  laws  provide  a  system  of 
compulsory  sickness  insurance  for  wage-earners 
in  which  the  employers  pay  one-third  and  the 
workmen  two-thirds  of  the  expense.  In  1908 
the  number  of  persons  (not  including  agricul- 
tural laborers)  insured  against  sickness  was 
about  13,000,000,  the  receipts  were  $95,000,000, 
and  the  expenditures  were  $91,000,000.  Besides 
these  two  branches,  there  is  a  third  national 
compulsory  system  relating  to  insurance  for  old 
age  and  invalidity,  in  which  the  employers  and 
the  workmen  each  pay  equal  amounts  while  the 
Imperial  Government  provides  a  liberal  subsidy. 
In  1 90S  the  number  of  persons  insured  under 
this  branch  was  15,000,000,  the  receipts  were 
$68,000,000,  the  expenditures  were  $48,000,000, 
while  the  reserve  amounted  to  $355,000,000. 
The  three  systems  of  insurance  have  been  in 
operation  for  nearly  twenty-five  years,  and  the 
experience  under  them  has  been  so  favorable 
76 


REDUCTION  OF  LITIGATION 

that,  in  response  to  a  widespread  demand,  the 
German  Government  is  now  preparing  to  revise 
and  extend  the  system,  and  it  is  expected  that  in 
a  few  years  even  greater  results  will  be  shown  than 
those  now  obtained.  A  number  of  cities  in 
Germany  are  now  providing  subsidies  for  organi- 
zations providing  benefits  in  cases  of  unemploy- 
ment; this  is  usually  done  by  repaying  the  trade 
imions  and  similar  organizations  a  percentage 
of  the  expenditures  they  make  for  out-of-work, 
travel,  etc.,  benefits." 

We  cannot  afford  to  treat  our  workmen  worse 
than  Germany  treats  hers,  and  some  system 
like  hers  should  be  estabhshed,  and  will  be  estab- 
lished in  this  country.  If  any  provisions  of 
our  constitutions  prevent,  the  difficulty  must  be 
removed  by  amendment.  It  is  largely  a  ques- 
tion of  mathematics,  and  whenever  the  facts 
and  figures  are  laid  before  the  business  com- 
munity, its  sound  sense  will  repudiate  our 
present  absurdly  expensive  and  ineffectual 
methods. 

77 


REFORM  OF  LEGAL  PROCEDURE 

As  the  Committee  on  the  Judiciary  of  the 
National  House  of  Representatives  said  in  a 
report  last  year: 

"Practically  every  civilized  industrial  nation 
in  the  world  has  since  discarded  the  old  system 
based  on  fault,  and  submitted  a  system  under 
which  the  industry  bears  the  burden  of  relieving 
the  distress  of  its  injured  workers  practically 
without  litigation. 

"  That  this  question  is  of  transcendent  im- 
portance and  one  wholly  connected  with  the 
advanced  policies  of  the  Government  respecting 
the  rights  of  labor  and  the  proper  equitable 
relations  between  the  employer  and  the  work- 
man, is  evidenced  by  the  utterance  of  President 
Taft,  in  a  recent  address  at  Worcester,  Mass., 
speaking  before  the  joint  committee  of  brother- 
hood in  train  service: 

"I  am  hopeful,  indeed,  that  before  many  years 

have  passed  we  shall  be  able  to  adopt  a  system 

...  by  which  there  shall  be  settled  promptly, 

on  rules  specified  with  the  same  degree  of  certainty 

78 


REDUCTION  OF  LITIGATION 

that  they  are  specified  in  an  insurance  policy, 
how  much  a  man  shall  receive  for  an  injury, 
proportionate  to  the  wages  that  he  gets  and 
proportionate  to  the  disabling  character  of  the 
injury.  ...  In  other  words,  I  think  we  ought 
to  have  a  uniformity  of  award,  a  dispatch  and 
quickness  in  award,  so  that  the  lawyers  may  be 
eliminated,  and  that  the  money  may  go  directly 
to  the  object  to  which  it  ought  to  be  devoted. 
It  will  rid  the  courts  of  litigation  with  which 
they  are  now  loaded  down.  It  will  make  the 
awards  reasonable  but  quick,  and  there  will  be 
no  division  in  the  money  paid  to  the  widow  and 
the  orphans  or  to  the  helpless  cripple.  That 
system  is  forcing  its  way  in  Europe,  and  I  hope 
we  may  have  it  here.  In  that  way  the  good 
feeling  between  the  company  and  the  employee 
will  be  facilitated  and  justice  will  be  done. 
The  railroads  can  calculate  with  the  utmost 
accuracy,  by  statistical  reference,  how  much 
money  they  will  have  to  devote  to  that  sort  of 
liability,  and  I  think  everybody  will  be  in  better 
79 


REFORM  OF  LEGAL  PROCEDURE 

condition.  The  middleman  will  be  eliminated, 
and  only  the  employee,  on  the  one  hand,  and 
the  treasury  of  the  railroad,  on  the  other,  will 
be  affected.' 

''And  by  President  Roosevelt's  address  at 
Jamestown : 

"As  a  matter  of  fact  there  is  no  sound  economic 
reason  for  distinction  between  accidents  caused 
by  negligence  and  those  which  are  unavoidable, 
and  the  law  should  be  such  that  the  payment  of 
those  accidents  will  become  automatic  instead 
of  being  a  matter  for  a  lawsuit.  Workmen 
should  receive  a  certain  definite  and  limited 
compensation  for  all  accidents  in  industry,  ir- 
respectiv^e  of  negligence.  It  is  neither  just, 
expedient,  nor  humane;  it  is  revolting  to  judgment 
and  sentiment  alike,  that  the  financial  burden  of 
accidents  occurring  because  of  the  necessary 
exigencies  of  their  daily  occupation  should  be 
thrust  upon  the  sufferers  who  are  least  able  to 
bear  it.'" 

No  man  can  work  out  a  perfect  system,  but 
80 


REDUCTION  OF  LITIGATION 

on  the  general  lines  which  have  been  suggested, 
the  problem  of  dealing  with  the  protection  of 
employers  from  accidents  and  their  consequences 
can  and  will  be  settled,  and  among  other  results 
the  courts  will  be  relieved  from  a  certain  class 
of  cases.  Gentlemen,  there  is  here  an  oppor- 
timity  for  you  all. 

But  there  remain  much  larger  classes  wliich 
this  scheme  would  not  touch.  Such  are  the 
claims  of  passengers  and  others  not  employees 
against  transportation  companies.  The  first  are 
most  easily  dealt  with  in  the  case  of  railroads  or 
steamship  companies  which  carry  passengers  for 
considerable  distances.  In  their  stations  the 
passenger  goes  to  one  window  and  gets  the  ticket 
which  entitles  him  to  transportation,  and  at 
an  adjoining  window  may  get  another  ticket 
wliich  entitles  him  to  a  certain  sum  in  case  he  is 
injured  by  an  accident  during  his  journey.  For 
the  latter  he  pays  a  trifling  sum,  which  includes 
besides  what  is  needed  to  cover  the  risk  of  loss, 
something  for  the  expenses  and  profit  of   the 


REFORM  OF  LEGAL  PROCEDURE 

insurance  company.  Why  should  not  these  be 
combined,  and  the  railroad  company  insure  its 
passengers?  It  does  in  efiect  insure  them  now, 
and  it  maintains  an  expensive  legal  department 
to  liquidate  by  costly  trials  the  claims  against 
it  as  such,  to  protect  itself  against  fraudulent 
claims,  and  perhaps  to  make  men  whose  claims 
are  just  take  less  than  their  due  rather  than 
incur  the  risk  and  expense  of  litigating  with  a 
rich  corporation.  The  Courts  have  laid  down 
the  rule,  that  a  carrier  cannot  by  contract  exempt 
himself  from  the  consequences  of  his  own  negU- 
gence,  but  he  can  Umit  his  liability  and  give  the 
passenger  one  hability  for  one  price  and  less  for 
a  less  price,  or  nothing  for  nothing,  as  in  the  case 
of  one  who  travels  on  a  free  pass.  Why  should 
not  the  railroad  company  add  a  small  svma  to  the 
price  of  its  ticket,  and  for  that  assume  the  lia- 
bility of  an  insurer,  and  why  should  not  the  pas- 
senger who  is  willing  to  take  the  very  trifling 
risk  of  accident  be  allowed  to  do  so?  A  very 
small  sum  added  to  the  price  of  a  ticket  would 
82 


REDUCTION  OF  LITIGATION 

cover  all  losses  and  be  for  the  company's  ad- 
vantage, and  this  sum  could  be  fixed  by  a 
Board  of  Railroad  Commissioners  or  other  rep- 
resentative of  the  State  so  as  to  prevent 
extortion. 

It  must  be  possible  to  regulate  by  some  rea- 
sonable contract  the  relations  between  passenger 
and  carrier,  so  that  the  passenger  may  get  a 
greater  or  less  degree  of  insurance  according  to 
the  price  which  he  pays  without  imposing  on  the 
railroad  a  greater  burden  than  it  now  carries. 
At  present  the  carrier  agrees  for  a  certain  price 
to  carry  the  passenger  safely,  and  in  case  it 
fails  to  do  so  to  pay  a  sum  to  be  fixed  by  the 
Court  according  to  circumstances.  Why  should 
not  the  parties  agree  upon  the  sum  to  be  paid 
and  the  price  be  adjusted  according  to  the  service 
performed  and  the  risk  assumed  by  the  carrier, 
as  the  carrier  now  varies  his  price  for  baggage 
according  to  its  weight  and  its  character?  It 
would  seem  to  be  a  problem  which  is  not 
insoluble,  and  there  is  no  sound  legal  reason 
83 


REFORM  OF  LEGAL  PROCEDURE 

for    refusing    parties   the    right  to    make    such 
contracts. 

When  we  come  to  the  case  of  street  railways, 
the  difficulty  increases.  There  the  journeys  are 
short,  the  passengers  constantly  changing,  and 
more  careless  in  getting  on  and  off  than  on 
steam  cars,  and  moreover  the  fare  is  a  fixed 
sum  represented  by  a  single  coin  or  multiples 
of  that  coin,  and  any  change  in  this  fare  is 
difficult  to  arrange.  On  the  other  hand  the 
percentage  of  passengers  who  are  not  carried 
safely  is  almost  infinitesimal.  Still  the  total 
number  of  persons  carried  is  so  large  that  an 
insignificant  percentage  makes  a  formidable 
total  of  cases  from  the  Court's  point  of  view,  and 
the  number  of  fraudulent  claims  is  larger  than 
with  other  carriers  because  the  identity  of 
passengers  is  not  easily  estabUshed,  and  it  may  be 
very  difficult  to  disprove  a  false  story.  It 
might  be  possible  to  reduce  litigation  by  a  slight 
extension  of  the  principle  which  I  have  suggested 
in  the  case  of  steam  railways.  The  legislature 
84 


REDUCTION  OF  LITIGATION 

might  limit  to  a  small  sum  the  liability  which 
the  company  shall  insure  by  the  receipt  of  a 
five-cent  fare,  providing  at  the  same  time  that 
if  passengers  are  not  wilUng  to  take  so  much 
risk  the  Company  might  issue  more  expensive 
tickets,  or  meet  the  wants  of  regular  passengers 
by  issuing  tickets  of  insurance  covering  longer 
or  shorter  periods  charging  for  such  insurance 
a  reasonable  rate.  In  brief,  the  Legislature  might 
provide  that  by  the  acceptance  of  a  certain  fare 
the  company  should  be  held  to  have  assumed  a 
Umited  UabiHty,  and  that  for  any  greater  Ha- 
biUty  the  passenger  must  pay.  This  is  perhaps 
a  crude  suggestion,  but  it  may  lead  some  one  of 
you  to  work  out  a  better  plan. 

The  claims  of  injured  persons,  who  are  not 
passengers  and  with  whom  no  contract  can  be 
made,  still  remain,  but  they  are  comparatively 
few,  and  for  the  present  may  be  left  to  the  Courts, 
for  I  would  not  take  all  the  bread  out  of  your 
expectant  mouths. 

All  these  suggestions,  however,  are  made  in 
85 


REFORM  OF  LEGAL  PROCEDURE 

support  of  my  main  proposition,  that  the  con- 
gestion of  the  dockets  and  the  consequent  delay 
of  suitors  may  be  dealt  with  by  legislation,  so 
regulating  the  subject  out  of  which  the  disputes 
grow  as  to  make  litigation  unnecessary  or  un- 
profitable. 

But  there  is  left  the  large  class  of  fraudulent 
claims  brought  on  speculation,  and  supported  by 
manufactured,  exaggerated  or  perverted  testi- 
mony and  by  professional  experts.  These  cannot 
always  be  detected.  If  they  could  they  would 
never  be  brought,  but  when  they  are  exposed, 
the  punishment  should  be  severe  and  certain. 
In  dealing  with  them,  the  Court  and  the  Bar 
should  act  together.  The  Bar  has  the  right  to 
ask  the  Court  for  information,  and  the  Court  has 
the  right  to  ask  the  Bar  for  investigation  and 
report.  In  every  considerable  section  there  is, 
or  should  be,  an  association  of  lawyers  to  hold 
up  the  standard  of  legal  practice,  and  to  purify 
the  Bar.  If  the  Court  is  satisfied,  or  has  strong 
reason  to  suspect,  that  a  case  is  fraudulent,  it 
86 


REDUCTION  OF  LITIGATION 

should  notify  the  representatives  of  this  asso- 
ciation and  ask  them  to  investigate.  There 
is  no  tribunal  that  a  tricky  attorney  dreads  more 
than  one  composed  of  his  honest  associates, 
and  there  is  no  penalty  that  he  fears  more  than 
their  condemnation.  The  mere  danger,  that  if 
his  fraud  is  detected  his  case  will  be  sent  to  the 
Bar  Association  for  investigation,  would  be  a 
powerful  deterrent.  Unless  a  fraud  is  very 
glaring,  he  has  now  nothing  to  fear  from  the  loss 
of  a  suit  except  the  loss  of  his  time,  and  some 
small  expenses  perhaps.  If  he  knew  that  the 
judge  stood  ready  to  inform  the  Bar  and  the 
Bar  stood  ready  to  investigate,  and  if  he  knew 
further  that  detection  would  be  followed  by 
swift  and  inexorable  punishment  like  suspension 
or  disbarment,  the  amount  of  improper  Utigation 
would  be  enormously  reduced.  This  is  a  step 
to  which  the  profession  must  come  if  it  would 
purify  the  courts  and  recover  its  proper  standing. 
It  would  involve  time  and  trouble  to  apply  this 
remedy  at  first,  but  after  two  or  three  examples 
87 


REFORM  OF  LEGAL  PROCEDURE 

had  been  made  and  the  proper  standard  estab- 
lished, it  would  not  often  be  necessary  to  take 
actual  proceedings. 

Another  step  towards  discouraging  fraudulent 
suits  by  striking  at  the  means  employed  in 
prosecuting  them  has  been  suggested  by  Samuel 
Untermyer,  the  well-known  lawyer  of  New 
York,  who  in  an  address  delivered  a  year  ago 
made  this  statement: 

"It  has  been  said,  and  I  think  rightly,  that  the 
crime  of  perjury  is  committed  in  at  least  three  out 
of  every  five  cases  tried  in  the  courts  in  which 
an  issue  of  fact  is  involved.  It  has  become  so 
general  that  the  Courts  regard  it  as  almost  a 
part  of  the  inevitable  accompaniment  of  a  trial." 

He  suggests  that  the  Court  should  be  obliged, 
at  every  trial  before  a  jury,  to  require  the  jury 
to  find  whether  any  witness  before  it  has  been 
guilty  of  wilful  false  swearing,  and  if  so  to  name 
the  witness  or  witnesses.  At  trials  before  the 
Court  without  a  jury,  the  judge  would  be  required 
to  make  this  finding.    There  are  many  objections 


REDUCTION  OF  LITIGATION 

to  this  remedy,  but  if  the  judge  were  to  watch 
trials  carefully,  and  wherever  perjury  was  clearly 
committed  to  report  the  case  to  the  prosecuting 
officer,  or  even  commit  the  witness  to  await 
the  action  of  the  Grand  Jury,  it  would  have 
a  strong  deterrent  effect.  I  have  known  this 
done  without  especial  statutory  authority, 
and  it  is  certain  that  some  steps  should  be 
taken  to  purify  trials  in  this  matter.  A  few 
conspicuous  cases  would  have  a  very  wholesome 
influence,  and  all  honorable  members  of  the  Bar 
should  exert  themselves  to  root  out  this  evil. 

Disputed  wills  are  a  proHfic  source  of  litiga- 
tion, and  in  passing  I  may  call  your  attention 
to  a  suggested  method  of  preventing  these 
contests.  It  is  proposed  that  a  statute  be 
passed  providing  that  the  testator  may,  if  he 
pleases,  file  his  will  in  court  during  his  life  and 
give  due  notice  to  all  the  world,  and  that  if  anyone 
questions  its  validity  on  any  ground  he  must 
appear  within  a  certain  time  and  contest  it 
or  be  forever  barred.  If  a  contestant  appears, 
89 


REFORM  OF  LEGAL  PROCEDURE 

let  him  be  required  to  prove  his  interest,  and 
then  under  proper  restrictions  be  allowed  to 
see  the  will.  If  he  still  desires  to  contest  it,  let 
the  questions  which  he  raises  be  tried  while 
the  testator  himself  can  testify  and  demonstrate 
his  capacity  or  explain  his  reasons.  Under  such 
a  law,  contested  will  cases  would  be  rare,  and  yet 
abundant  protection  would  be  afforded  against 
incapacity,  fraud,  and  undue  influence.  Doubt- 
less many  other  laws  might  be  suggested  which 
would  reduce  the  volume  of  litigation,  but  I  wish 
to  leave  a  large  field  open  for  your  ingenuity,  and 
will  end  this  branch  of  my  subject  here. 


90 


Ill 

DELAYS  DURING   TRIAL 

THUS  far  I  have  dealt  with  the  causes  of 
delay  before  trial,  and  have  suggested  as 
remedies  a  higher  standard  of  professional 
fidelity  which  shall  eliminate  groundless  suits 
and  improper  defences,  the  imposition  of  sub- 
stantial costs  on  client  or  counsel  in  proper 
cases,  a  keener  professional  conscience  which 
shall  overcome  the  temptation  to  procrastinate, 
and  the  removal  of  certain  classes  of  litigation 
from  the  courts  by  legislation. 

Let  us  now  proceed  to  consider  those  things 
which  prolong  the  trial  itself,  or  prevent  a 
prompt  and  just  judgment.  These  can  be  dealt 
with  more  briefly,  and  we  will  begin  by  assum- 
ing that  the  case  is  tried  by  jury  or  Court 
without  first  sending  it  to  a  master  or  auditor. 
Delay  can  be  caused  in  such  a  trial  only  by 
91 


REFORM  OF  LEGAL  PROCEDURE 

needlessly  prolix  examination  or  cross-examina- 
tion of  witnesses,  by  sparring  between  counsel, 
or,  where  the  hearing  is  before  a  judge  or  judges, 
by  delay  in  the  decision.  Where  a  jury  tries 
the  issue  there  may  also  be  delay  in  selecting 
the  jurors,  but  this  will  be  dealt  with  when  we 
come  to  consider  the  administration  of  criminal 
law,  for  in  civil  cases  delay  on  this  account  is 
not  common. 

The  length  to  which  the  examination  and  cross- 
examination  of  witnesses  shall  be  pressed,  and 
the  extent  to  which  cumulative  evidence  shall  be 
allowed,  must  be  left  to  the  determination  of 
the  presiding  judge,  who  must  also  control  the 
conduct  of  counsel  during  the  trial.  The  first 
is  a  matter  of  discretion,  the  second,  in  at  least 
one  important  respect,  should  be  governed  by 
strict  rules.  In  many  trials  much  time  is  wasted 
in  altercations  between  coimsel.  One  lawyer  will 
make  a  statement  of  fact  or  a  personal  charge 
against  his  opponent  or  some  joke  at  his  expense. 
The  other  dares  not  remain  silent  lest  he  be 
92 


DELAYS  DURING  TRIAL 

thought  to  admit  the  fact  or  the  charge,  or  lose 
by  not  answering  a  joke  in  kind.  When  the 
laugh  is  against  a  man,  he  and  his  case  may 
suffer  with  the  jury.  Hence  the  lawyer  who  is 
attacked  replies,  and  an  unseemly  dispute  en- 
sues, which  delays  the  trial,  confuses  the  jury, 
and  exasperates  the  combatants,  neither  of 
which  consequences  helps  in  the  ascertainment 
of  justice.  The  judge  can  and  should  stop  all 
such  interruptions  of  orderly  proceedings  at 
once,  by  inexorably  requiring  counsel  to  address 
the  Court  and  not  each  other.  A  judge  who 
enforces  this  rule  confers  an  obhgation  on  every 
one  concerned  —  on  the  pubHc,  by  preventing 
a  waste  of  public  time,  on  the  jury,  who  are 
often  disgusted  and  wearied  by  constant  squabbles 
between  counsel,  and  on  the  counsel  themselves, 
who  are  often  dragged  into  such  disputes  reluc- 
tantly lest  silence  be  misinterpreted,  and  who 
say  things  in  heat  of  which  in  their  cooler  moments 
they  are  thoroughly  ashamed.  A  judge  in  this 
matter  should  be  prompt  and  firm. 
93 


REFORM  OF  LEGAL  PROCEDURE 

The  Court  may  well  interfere  also  to  prevent 
a  waste  of  time  in  examining  witnesses.  It  is 
true  that  a  cross-examiner  should  not  be  com- 
pelled to  disclose  his  object,  since  to  do  so  is  often 
to  put  a  false  witness  on  his  guard  and  so  defeat 
the  whole  purpose  of  cross-examination,  but  a 
strong  and  experienced  judge  can  generally  tell 
whether  counsel  is  wasting  or  merely  using  time. 
Even  the  ablest  lawyer,  in  dealing  with  a  witness, 
is  sometimes  carried  along  by  the  deUght  of  the 
contest,  and  in  the  attempt  to  score  a  personal 
triumph  over  the  witness  loses  sight  of  his  case. 
A  little  interruption  or  expression  of  weariness 
will  bring  him  to  his  senses,  and  an  inept  coimsel 
can  by  a  hint  be  persuaded  to  abandon  an  unprof- 
itable lead. 

Some  years  ago,  a  friend  of  mine  in  England 
was  watching  the  trial  of  a  case  when  one  of 
the  counsel  called  a  witness.  "Why  do  you 
call  this  witness?"  said  the  judge.  "I  want  to 
make  the  jury  understand  the  working  of  a 
winch"  was  the  reply.  "Oh,"  said  the  judge, 
94 


DELAYS  DURING  TRIAL 

"the  jury  understands  that,"  and  turning  to  the 
jury,  he  said:  "Gentlemen,  don't  you  all  know 
what  a  winch  is  and  how  it  works?"  They  all 
nodded  assent.  "You  see,"  continued  the 
judge,  "  you  don't  need  this  witness.  Call  your 
next."  A  Httle  while  later  the  case  was  given 
to  the  jury,  who,  as  is  very  often  the  case  in 
England  consulted  without  leaving  the  box. 
After  a  few  minutes  the  judge  turned  to  them, 
and  said:  "Well,  gentlemen,  have  you  agreed  ?" 
"We  stand  eleven  to  one,"  answered  the  fore- 
man." Addressing  the  counsel  the  judge  said: 
"Gentlemen,  will  you  take  the  verdict  of  the 
eleven?"  They  assented,  and  the  case  was 
ended.  This  was  practical  sense,  and  it  may  be 
added  that  consultation  by  the  jurymen  under 
the  eye  of  the  judge  and  counsel  should  be  en- 
couraged. It  insures  attention  to  business,  and 
avoids  much  waste  of  men  in  the  jury-room. 

There   is   another   saving   of    time   which   is 
within  the  control  of  counsel,  who  can  always 
avoid  prolix  and  useless  examination  and  cross- 
95 


REFORM  OF  LEGAL  PROCEDURE 

examination.  Direct  examination  is  really  more 
difficult  than  cross-examination,  and  should 
be  prepared  carefully.  The  counsel  must  learn 
what  the  witness  knows,  and  then  make  him 
tell  his  story  connectedly  and  simply,  —  as  far 
as  possible  chronologically,  avoiding  digres- 
sions and  interruptions  of  the  narrative.  Tes- 
timony that  is  not  extracted  by  leading  questions 
is  more  effective  than  the  responses  of  a  wit- 
ness who  is  led,  but  there  are  worse  faults 
than  leading,  which  is  often  necessary  with 
certain  witnesses  in  the  interest  of  reasonable 
expedition. 

Cross-examination  is  a  very  dangerous  amuse- 
ment where  an  honest  witness  has  told  the 
truth  and  there  is  no  fact  within  his  knowl- 
edge which  cross-examining  counsel  needs  —  a 
cross-examination  only  doubles  the  effect  of  his 
testimony,  irritates  him,  and  perhaps  stimulates 
his  memory  to  the  injury  of  the  cross-examiner. 
With  such  a  witness,  the  most  effective  course 
is  to  say:  "That  is  all"  or  "No  questions." 
96 


DELAYS   DURING  TRIAL 

This  often  disappoints  the  opponent  who  has 
extracted  the  bare  facts  and  rehed  on  cross- 
examination  to  fill  in  the  details.  It  indicates 
to  the  jury  that  the  cross-examiner's  case  is 
not  injured  by  the  witness,  and  if  a  case  is  well 
prepared  this  must  be  so,  since  you  must  have 
known  what  the  witness  would  say  and  have 
some  way  of  meeting  his  testimony,  else  you 
have  no  case.  Cross-examination  is  useful  in 
bringing  out  helpful  facts  from  an  honest  wit- 
ness, in  making  a  false  witness  testify  positively 
to  statements  which  the  cross-examiner  can  con- 
tradict, and  in  breaking  a  lying  witness  down 
by  exposing  his  falsehood,  but  cross-examination 
for  general  results  without  a  definite  plan  —  the 
Micawber-Uke  process  of  asking  questions  in 
the  hope  that  "something  wdll  turn  up" — is 
generally  fatal.  When  a  witness  has  done  your 
case  all  the  harm  possible  and  he  must  be 
broken,  then,  and  then  only,  is  such  a  process 
to  be  justified.  If  counsel  would  bear  these 
simple  rules  in  mind,  much  aimless  and  useless 
97 


REFORM  OF  LEGAL  PROCEDURE 

cross-examination    would     be     avoided    to    the 
advantage  of  all  concerned. 

In  this  country  we  are  too  apt  to  regard  a 
trial,  not  as  a  business-like  attempt  to  settle  a 
question  between  two  parties  with  the  help  of 
court  and  counsel,  but  as  a  battle  in  the  nature 
of  a  prize-fight  between  counsel.  Each  side  is 
provided  with  a  table,  and  sits  down  for  a  long 
siege,  while  every  word,  however  used,  is  care- 
fully recorded  by  the  stenographers,  and  the 
judge  sits  as  an  interested  spectator  with  the 
power  of  a  time-keeper.  In  England  the  counsel 
sit  in  semi-circular  pews,  with  scant  accommoda- 
tion, and  each  rises  where  he  sits  to  examine 
witnesses  or  address  the  jury.  This  very  differ- 
ence in  the  seating  of  counsel  typifies  the 
difference  in  the  procedure.  The  English  judge 
controls  the  trial  from  beginning  to  end  and 
interposes  to  shorten  the  proceedings  with  great 
freedom,  while  in  America  such  intervention 
would  be  resented.  Yet  no  one  complains 
that  the  English  Courts  do  not  do  justice. 
98 


DELAYS   DURING   TRIAL 

It  is  important,  also,  that  the  trial  should  be 
so  conducted  that  there  will  be  no  second  trial 
of  the  same  facts.  This  can  in  many  cases  be 
done  by  submitting  to  the  jury  distinct  issues  of 
fact  or  requiring  them  to  answer  specific  ques- 
tions, a  practice  which  has  been  repeatedly 
recommended  by  the  American  Bar  Association 
and  other  organizations  of  high  standing.  As 
cases  are  generally  submitted  to  a  jury,  the 
jurymen  are  required,  after  a  long  trial  and 
moving  appeals  to  their  passions  and  preju- 
dices, upon  evidence  which  must  be  remem- 
bered imperfectly,  and  under  instructions  on 
complicated  questions  of  law  at  best  imper- 
fectly understood,  to  decide  whether  on  the 
whole  the  plaintiff  or  the  defendant  should 
prevail.  The  real  issues  are  obscured  or  for- 
gotten, and  a  jury  must  often  agree  upon  a 
verdict  without  really  considering  the  vital 
questions  upon  which  the  rights  of  the  parties 
depend. 
For  example,  some  years  ago  a  lawyer  arguing 
99 


REFORM  OF  LEGAL  PROCEDURE 

for  the  plaintiff  in  an  accident  suit  against  a 
railway  company,  said  to  the  jury:  "Gentlemen, 
my  client  needs  the  paltry  sum  which  she  seeks 
to  recover  at  your  hands.  Oh,  how  she  needs 
it !  You  have  seen  her.  You  have  seen  her  age, 
her  weakness,  her  inability  to  struggle  with  the 
world.  You  can  judge  how  this  accident  has 
affected  her,  and  how  much  good  this  money 
will  do  her.  And,  gentlemen,  while  I  speak  to 
you,  —  in  these  few  minutes,  this  great  corpora- 
tion is  taking  in,  at  a  few  of  its  ticket  offices, 
more  money  than  enough  to  make  her  comfort- 
able for  life.  She  needs  it,  and  the  defendant 
does  not,  —  will  never  miss  it.  Can  you  hesi- 
tate, gentlemen,  between  the  two?"  The  judge 
sat  by  and  heard  in  silence  this  appeal.  How 
much  attention,  do  you  think,  the  jury  gave  to 
the  question  of  the  defendant's  negligence  or 
the  plaintiff's  want  of  due  care?  The  facts,  that 
one  party  is  a  corporation  and  the  other  an 
individual,  that  one  is  rich  and  the  other  poor, 
that  one  is  native  and  the  other  foreign,  that 

lOO 


DELAYS  DURING  TRIAL 

one  is  white  and  the  other  colored,  often  out- 
weigh evidence  and  law. 

I  remember  once  defending  a  corporation 
against  an  absurd  claim,  and  the  judge  began  his 
charge  by  saying:  "Gentlemen  of  the  Jury:  — 
In  my  years  of  service  on  the  bench  I  have  seen 
more  injustice  done  because  juries  have  allowed 
their  minds  to  be  influenced  by  the  fact  that 
one  of  the  parties  was  a  corporation  than  from 
any  other  single  cause.  Now  I  want  you  in 
this  case  to  ignore  this  fact,  and  to  decide  it  as 
if  both  plaintiff  and  defendant  were  individuals." 
The  jury  were  out  nineteen  hours,  and  then  gave 
me  a  verdict.  An  old  juryman  afterwards  came  to 
my  office,  and  said,  "You  know  the  judge  told  us 
that  we  mustn't  allow  the  fact  that  the  defendant 
was  a  corporation  to  influence  our  minds.  Well, 
finally,  I  didn't  allow  it  to  influence  my  mind." 
This  confession  shows  what  goes  on  in  the  jury- 
room. 

The  way  to  avoid  the  influence  of  these  pre- 
judices is  to  make  the  jury  decide  the  real  issues 

lOI 


REFORM  OF  LEGAL  PROCEDURE 

involved.  When  the  jury  is  required  to  answer 
direct  questions,  they  are  forced  to  consider  the 
real  issues  of  facts,  and  the  verdict  settles  the 
facts  once  for  all.  The  Court  can  then  order  a 
verdict  one  way  or  the  other,  and  let  the  appellate 
Court,  if  it  does  not  affirm  the  ruling,  order  such 
a  judgment  upon  the  findings  as  the  law  requires. 
The  province  of  the  jury  is  to  find  facts  and  assess 
damages,  and  to  this  province  they  should  be 
Hmited.  If  the  jury  were  regularly  asked  in 
accident  cases  such  questions  as:  "Was  the 
defendant  neghgent?"  "If  so,  in  what  did 
the  negligence  consist":  or  if  the  claim  is  that 
the  plaintiff  did  not  exercise  due  care  by  omitting 
some  precaution  or  doing  some  careless  thing, 
the  judge  were  to  submit  the  question  whether  he 
did  do  the  thing  or  omit  the  precaution  suggested, 
the  jury  would  in  fact  deal  with  the  questions 
which,  in  theory,  they  must  decide  in  order  to 
reach  a  verdict,  but  which,  in  practice,  may  or 
may  not  receive  their  attention.  Were  this 
system  adopted,  the  parties  would  not  be  com- 

I02 


DELAYS  DURING  TRIAL 

pelled  to  try  the  questions  of  fact  again,  be- 
cause the  judge  at  the  trial  erred  in  his  views 
of  liability  upon  these  facts.  One  trial  would 
suffice  to  estabUsh  the  facts,  and  a  verdict  upon 
them  could  only  be  set  aside  for  flagrant  errors 
in  omitting  or  excluding  evidence  which  bore 
upon  these  issues. 

In  dealing  with  questions  of  evidence,  the 
Appellate  Court  should  be  given  liberal  dis- 
cretion to  sustain  the  verdict  where  it  is 
reasonably  apparent  that  the  admitted  or  ex- 
cluded evidence  ought  not  to  have  changed 
the  jury's  conclusion,  or  that  the  judgment  of 
the  Court  below  was  in  itself  just.  Remembering 
that  the  trial  judge  may  always  set  aside  an 
improper  verdict,  and  that  the  case  rarely 
reaches  the  Appellate  Court  imtil  the  power  has 
been  invoked,  the  slight  chance  of  injustice 
arising  from  an  error  in  dealing  with  evidence 
committed  both  by  the  trial  judge  and  the 
Appellate  Court  is  infinitesimal  as  compared 
with  the  injustice  done  by  the  present  practice, 
103 


REFORM  OF  LEGAL  PROCEDURE 

and  the  delay  and  expense  to  which  not  only  the 
parties  but  all  litigants  in  the  same  court  are 
put  by  repeated  new  trials. 

Let  me  give  two  illustrations  of  existing 
difl&culties  taken  from  a  recent  article  by  Mr. 
George  W.  Alger.  He  quotes  from  the  argument 
of  counsel,  addressing  the  New  York  Court  of 
Appeals  in  a  very  iminteresting  case  about  a 
small  plot  of  land: 

(This  case  has  been  tried  three  times  in 
the  lower  court  by  juries,  has  been  heard  on 
appeal  in  this  court  twice,  and  once  in  the 
Court  of  Appeals.  The  expenses  of  the  Htiga- 
tion  already  have  absorbed  the  value  of  this 
property  in  dispute.  If  there  be  some  way  which 
the  court  can  find  for  deciding  finally  this  dispute 
here  in  this  court,  without  requiring  it  to  be 
tried  over  again,  it  will  be  a  blessing  to  all  con- 
cerned.) 

"  This  blessing  the  court  found  itself  unable  to 
confer,  and  sLx  months  later  the  case  again  was 
on  the  first  round  of  the  judicial  ladder  for  a 
Z04 


DELAYS  DURING  TRIAL 

new  trial  in  the  lower  court;  and  recently  it  has 
been  once  more  decided  in  the  Appellate  Court, 
and  is  now  on  its  weary  way  to  the  Court  of 
Appeals."  ^ 

Another  case  which  he  cites  is  the  case  of 
Ellis  V.  The  Delaware,  Lackawanna  and  Western 
R.  R.  Co.,  a  suit  by  a  brakeman  to  recover 
damages  for  personal  injuries.  He  was  injured 
in  July,  1882,  and  twenty- two  years  later  he 
finally  recovered  judgment  for  $6500,  under  the 
New  York  system  which  gives  two  appeals  from 
the  trial  court,  one  to  the  Appellate  Division, 
and  one  to  the  Court  of  Appeals.  During  this 
period,  the  plaintiff  had  seven  trials  of  the  facts 
before  a  jury,  and  after  the  first  two,  the  Court 
of  Appeals  holding  that  on  his  own  testimony 
the  trial  Court  should  have  directed  a  verdict 
for  the  company,  he  completely  changed  his 
testimony  on  all  points  which  the  Court  of 
Appeals  had  relied  on  in  reaching  its  judgment, 

'"Treadmill  Justice,"  Atlantic  Monthly,  vol.  104,  No- 
vember,  1909. 


REFORM  OF  LEGAL  PROCEDURE 

and  on  this  reconstructed  case,  after  eleven 
years  of  fresh  litigation,  he  won  his  final 
verdict. 

This  is  not  an  unusual  case,  for  the  Court  of 
Appeals  has  itself  said,  that  "It  frequently 
happens  that  cases  appear  and  reappear  in  this 
court,  after  three  or  four  trials,  where  the  plain- 
tiff on  every  trial  has  changed  his  testimony  in 
order  to  meet  the  varying  fortunes  of  the  case 
upon  appeal."  We  may  well  say,  slightly 
changing  a  familiar  quotation:  "Oh,  justice, 
justice!  what  crimes  are  committed  in  thy  name!" 

Mr.  Alger  thinks  that  the  expense  of  this 
litigation,  not  including  lawyers'  fees,  was  five 
thousand  dollars  at  a  conservative  estimate. 
What  it  cost  either  lawyers  or  cHents  for  the 
time  that  the  counsel  gave  is  a  matter  of  pure 
conjecture,  but  it  is  safe  to  say  that  this  liti- 
gation profited  no  one  and  cost  the  community 
dear. 

Let  me  quote  one  more  case  from  Mr.  Alger: 

"A  grimly  humorous  illustration  of  one  of  the 
io6 


DELAYS   DURING  TRIAL 

results  to  the  litigant  may  be  found  in  another 
New  York  law-suit  which  reached  a  final  chapter 
recently  in  the  Court  of  Appeals.  It  was  a 
complex  case  against  an  insurance  company  on 
some  poUcies  of  insurance,  and  each  time  it  was 
tried  it  took  from  a  week  to  two  weeks'  attention 
of  Court  and  jury.  Owing  to  reversals  and  new 
trials  ordered  by  appellate  courts,  it  had  to  be 
tried  nine  times.  It  was  in  the  courts  from  1882 
to  1902.  The  plaintiff  became  at  last  so  sick 
and  disheartened  with  his  interminable  law-suit 
that  he  abandoned  it;  refused  to  go  to  his  lawyers 
to  consult  with  them  about  it  or  to  appear  when 
the  case  was  being  tried.  The  lawyers  had 
themselves  spent  over  forty-five  hundred  dollars 
in  fighting  the  case,  and  had  worked  on  it 
for  nearly  twenty  years.  Their  client  having 
abandoned  them,  they  settled  the  case  for  thirty 
thousand  dollars,  and  took  the  money  themselves 
for  their  fees.  The  last  chapter  of  the  litigation 
was  an  unsuccessful  attempt  by  the  receiver  in 
insolvency  of  the  plaintiff  to  make  the  lawyers 
107 


REFORM  OF  LEGAL  PROCEDURE 

give  up  some  of  their  fees  to  their  dient's  creditors. 
How  much  the  twenty  years'  delay  in  the  law- 
suit had  to  do  with  that  insolvency  it  is  impossible 
to  say;  but  such  an  outcome,  to  the  lay  mind, 
seems  hardly  satisfactory  as  a  result  of  twenty 
years  of  Utigation,  of  nine  trials,  and  seventy- two 
days'  time  of  over  a  hundred  jurors." 

These  are  fruits  of  the  existing  system  in  the 
richest  state  of  the  Union,  a  great  commercial 
community,  old  and  highly  civilized  according 
to  our  standards.  Mr.  Alger  does  well  when  he 
says  that  one  great  defect  in  our  system  is  the 
"lack  of  terminal  facilities." 

In  Philadelphia,  on  the  4th  of  last  June,  the 
statement  was  made  by  a  Mr.  Scoville,  a  member 
of  its  Bar,  that  it  usually  took  two  years  to  reach 
a  jury,  while  in  Pittsburg,  in  1909,  the  number  of 
jury  cases  waiting  trial  was  7274  and  its  four 
courts  had  only  tried  783  in  a  year.  He  quotes 
from  business  men  such  statements  as  these: 
"Not  being  immortal  we  have  decided  to  bring 
no  more  suits  in  Philadelphia,"  and  "I  can 
108 


DELAYS   DURING  TRIAL 

obtain  justice  in  hell  quicker  than  in  Philadel- 
phia," while  a  Russian  emigrant  wrote:  "Such 
denial  of  justice  is  misery  and  despotism.  Court 
conditions  in  Russia  are  not  as  bad  as  they  are 
here." 

Contrast  this  with  what  I  read  in  the 
London  "Times,"  on  July  26  last,  in  an  article 
discussing  a  proposition  to  appoint  two  new 
judges : 

"They  will  find  plenty  of  work  to  do,  and  no 
small  arrears  to  be  cleared  off,  cases  entered 
about  March  last  being  still  undisposed  of." 

Much  of  this  interminable  delay  would  be  saved 
if  the  jury  answered  specific  questions,  and  the 
courts  merely  applied  the  law  to  their  findings, 
entering  judgment  accordingly,  with  no  new  trial 
of  facts  whenever  the  trial  judge  makes  a  mistake 
of  law. 

3^6  wish  to  minimize  the  danger  of  error  in 

the  trial  court  and  to  insure  just  findings  by  the 

jury  as  well  as  correct  ruHngs  by  the  Court. 

To  this  end  the  judge  should  be  allowed  to  charge 

109 


REFORM  OF  LEGAL  PROCEDURE 

the  jury  on  the  facts,  and  not  as  is  now  the  case 
in  many  jurisdictions,  forbidden  to  give  the  jury 
any  idea  of  his  opiniofi. 

The  judge  is  the  only  person  in  court  at 
once  trained  to  apply  the  law,  experienced  in 
trials,  and  impartial.  He  is  familiar  with  the 
wiles  of  witnesses  and  coimsel,  for  no  man  can 
preside  in  court  for  any  length  of  time  without 
learning  to  detect  the  evidences  of  falsehood 
and  to  weigh  at  their  true  value  appeals  to 
prejudice  and  sympathy.  The  jury  needs  all  the 
advice  and  help  that  he  alone  can  give  them,  for 
as  a  rule  they  are  entirely  without  experience  in 
the  work  which  they  are  asked  to  do.  I  have 
often  thought  when  I  have  been  engaged  in 
discussing  ^^ith  opposing  counsel  some  case 
which  bristled  with  questions  of  fact  and  law, 
and  looking  out  of  the  window  have  seen  a  mis- 
cellaneous crowd  listening  to  some  patent  medi- 
cine-vendor, or  watching  the  moving  of  a  safe, 
how  strange  it  would  sound  to  a  foreigner  if  he 
heard  me  say  to  my  opponent:  "We  with  all 
no 


DELAYS   DURING  TRIAL 

our  knowledge  and  experience  cannot  agree  upon 
this  case.  Let  us  take  twelve  men  at  random 
from  that  crowd  and  let  them  decide  it."  Yet 
that  is  what  we  do  in  practice,  where  we  let  a 
jury  decide  without  the  help  of  a  judge,  and  the 
more  we  Hmit  the  judges'  power  the  nearer  we 
come  to  such  an  absurdity. 

The  law  of  England  gives  the  judge  his  proper 
place  as  the  Court,  and  trial  by  jury  would  have 
been  abandoned  long  ago  if  this  had  not  been 
so.  I  have  already  alluded  to  the  Tichborne 
case,  in  which  after  the  trial  had  lasted  one 
hundred  and  sixty-nine  days,  Chief  Justice 
Cockburn  charged  the  jury  for  eighteen  days, 
and  from  his  summing  up  I  quote  the  following 
words: 

"I  cannot  invent  facts,  nor  by  the  utmost 
effort  of  ingenuity  can  I  find  explanations  which 
have  no  reality  in  point  of  fact.  In  my  opinion 
a  judge  does  not  discharge  his  duty  who  contents 
himself  with  being  a  mere  recipient  of  evidence, 
which  he  is  afterwards  to  reproduce  to  the 
III 


REFORM  OF  LEGAL  PROCEDURE 

jury  without  pointing  out  the  facts,  and  the 
inferences  to  which  they  naturally  and  legiti- 
mately give  rise.  It  is  the  business  of  the  judge 
so  to  adjust  the  scales  of  the  balance  that  they 
hang  evenly;  but  it  is  his  duty  to  see  that  the 
facts,  as  they  arise,  are  placed  in  the  one  scale 
or  the  other,  according  as  they  belong  in  one  or 
the  other.  It  is  his  business  to  take  care  that  the 
evidence  which  properly  arises  from  the  facts  is 
submitted  to  the  consideration  of  the  jury,  with 
the  happy  consciousness  that,  if  he  goes  wrong, 
there  is  the  judgment  of  twelve  men,  experienced 
in  the  everyday  concerns  of  Hfe,  to  set  right 
anything  in  respect  of  which  he  may  have  erred. 
If  the  facts  make  one  scale  kick  the  beam,  it  is 
the  fault  of  the  facts,  not  of  the  judge." 

In  the  Federal  Courts  this  ideal  is  maintained. 
"Trial  by  jury,"  said  Mr.  Justice  Gray,  "in  the 
Courts  of  the  United  States,  is  a  trial  presided 
over  by  a  judge,  with  authority  not  only  to 
rule  upon  objections  to  evidence  and  to  instruct 
the  jury  upon  the  law,  but  also,  when  in  his 

112 


DELAYS  DURING  TRIAL 

judgment  the  due  administration  of  justice 
requires  it,  to  aid  the  jury  by  explaining  and 
commenting  upon  and  even  giving  them  his 
opinion  upon  questions  of  fact,  provided  only 
he  submits  those  questions  to  their  determina- 
tion." Mr.  Justice  Brewer  states  the  rule 
thus:  "The  judge  is  primarily  responsible  for 
the  just  outcome  of  the  trial.  He  is  not  a  mere 
moderator  of  a  town  meeting,  submitting  ques- 
tions to  the  jury  for  determination,  nor  simply 
ruling  on  the  admissibihty  of  testimony,  but 
one  who  in  our  jurisprudence  stands  charged 
with  full  responsibility.  He  has  the  same 
opportunity  that  jurors  have  for  seeing  the 
witnesses,  for  noting  all  those  matters  in  a  trial 
not  capable  of  record,  and  when,  in  his  dehberate 
opinion,  there  is  no  excuse  for  a  verdict  save  in 
favor  of  one  party,  and  he  so  rules  by  instructions 
to  that  effect,  an  appellate  court  will  pay  large 
respect  to  his  judgment."^ 

In  a  word,  the  judge  has,  as  he  should  have, 

1  Palton  V.  Texas  &  Pacific  Ry.  Co.  179  U.  S.  p.  660. 


REFORM  OF  LEGAL  PROCEDURE 

a  powerful  influence  on  the  result.  It  is  not 
believed  that  suitors  get  less  justice  in  the 
Federal  Courts  on  this  account. 

In  the  states,  on  the  other  hand,  the  whole 
tendency  is  to  reduce  the  judge's  influence  and 
to  increase  not  so  much  the  power  of  the  jury 
as  the  power  of  the  skillful  advocate  upon  the 
result  of  the  trial.  This  is  wholly  wrong. 
Counsel  may  make  every  appeal  to  sympathy 
and  prejudices,  and  every  ingenious  attempt 
to  mislead  the  jurymen,  but  the  judge,  who 
has  no  reason  to  mislead  them,  and  who  must 
be  more  impartial  than  either  counsel,  is  in 
many  states  prevented  from  saying  anything 
to  counteract  these  improper  influences.  He  is 
given  power  to  set  aside  a  verdict  which  in  his 
judgment  is  wrong,  and  thus  subject  the  parties 
to  the  expense  and  delay  of  a  second  trial,  but 
he  can  do  nothing  to  secure  a  true  verdict,  and 
that  influence  which  should  be  most  potent  in 
securing  a  proper  result  is  thus  shorn  of  its 
power.  He  may  make  mistakes  in  ruling  upon 
114 


DELAYS   DURING   TRIAL 

questions  of  evidence  or  in  his  instructions  to 
the  jury,  and  the  chance  of  his  doing  so  lends 
a  permanent  element  of  uncertainty  to  all  trials. 
From  such  mistakes  come  frequent  retrials  and 
consequent  delay  and  expense,  but  as  trials  are 
generally  conducted,  his  opportunities  for  error 
are  numerous,  his  power  to  secure  justice  is 
shght.  We  need  in  our  trial  courts  good 
judges  of  high  character  and  sufficient  firm- 
ness and  we  must  give  them  more  power.  We 
profess  the  greatest  respect  for  and  confi- 
dence in  the  Bench,  and  express  it  on  every 
public  occasion.  As  a  rule,  the  Bench  de- 
serves this  confidence,  but  in  practice  we  do 
not  trust  the  men  whom  we  thus  delight  to 
honor. 

I  have  said  that  the  tendency  is  to  limit  the 
power  of  the  judge.  The  reason  is,  perhaps,  that 
the  Bar  is  represented  in  the  legislature  and  the 
Bench  is  not.  The  lawyer  who  feels  aggrieved 
by  the  action  of  a  judge  in  some  particular  case, 
who  has  felt  the  halter  draw  around  his  profes- 
"5 


REFORM  OF  LEGAL  PROCEDURE 

sional  neck  with  the  proverbial  result,  induces 
other  lawyers  to  unite  with  him  m  having  a  law 
passed  to  diminish  the  judge's  power.  He  and 
his  friends  represent  one  side,  no  one  represents 
the  other,  and  so  the  law  is  passed.  As  Pro- 
fessor Poimd  says: 

"Legislation  with  respect  to  the  charge  of  the 
Court  may  be  shown  to  have  originated  in  more 
than  one  jurisdiction  in  the  desire  of  eloquent 
counsel  of  a  by-gone  t3^e  to  deprive  not  merely 
the  trial  judge  but  the  law,  of  all  influence  upon 
trials,  and  to  leave  everything  to  be  disposed  of 
on  the  arguments." 

Unhappily  the  counsel  so  described  are  not 
wholly  "bygone,"  and  in  at  least  one  state  of 
my  acquaintance  there  exists  an  organization  of 
lawyers  principally  concerned  in  personal  injury 
cases,  which  systematically  endeavors  to  obtain 
legislation  that  shall  remove  every  obstruction 
which  the  judge  can  interpose  between  them  and 
the  results  which  they  seek. 

The  practical  results  would  be  ludicrous  if 
ii6 


DELAYS   DURING  TRIAL 

they  were  not  so  disastrous.     Let  me  give  you 
some  specimens. 

In  some  jurisdictions  the  judge  is  allowed  only 
to  give  or  refuse  written  requests  for  rulings  sub- 
mitted by  counsel  and  is  forbidden  to  say  any- 
thing else  to  the  jury.  The  judge  must  read 
these  requests  before  the  argument,  and  as  a 
result,  when  counsel  begins  to  close,  he  leaves 
the  Bench  and  impanels  another  jury,  letting 
counsel  argue  unchecked.  It  is  difl5cult  to  say 
what  may  not  happen  where  such  hcense  is 
allowed. 

Jn  Iowa  and  in  North  Carolina  statutes 
'provide  that  the  Court  shall  not  limit  the  time 
of  any  attorney  addressing  a  jury.  What  is 
possible  where  no  limit  is  allowed  may  be  inferred 
from  the  fact  that  before  a  limitation  was  imposed 
in  Massachusetts  one  counsel  argued  seventeen 
hours  and  his  opponent  eighteen  hours  in  an 
ordinary  case,  while  some  years  ago  in  Delaware 
the  Court  gave  a  week  to  the  hearing  of  a  case 
which  in  the  Supreme  Court  of  the  United  States 
117 


REFORM  OF  LEGAL  PROCEDURE 

would  have  taken  four  hours,  and  the  counsel 
spent  their  time  while  I  was  present  in  reading 
passages  from  decisions,  while  the  judges  were 
naturally  somnolent.  Mere  sympathy  for  the 
Court  and  jury  should  forbid  such  barbarous 
practices. 

The  judge's  right  to  see  that  what  happened 
at  the  trial  is  properly  stated  in  the  bill  of 
exceptions  is  not  even  secured,  for  in  Texas  a 
law  provides  that  if  a  judge  refuses  to  sign  such 
a  bill  "it  shall  be  lawful  for  any  two  attorneys 
who  may  be  present  at  the  time  to  sign  such  bill 
of  exceptions,  which  shall  have  the  same  force 
and  effect  as  if  signed  by  the  judge." 

Another  statute,  fortunately  of  brief  existence, 
forbade  a  judge  to  require  counsel  to  stand  during 
the  examination  of  witnesses.  The  genesis  of  this 
statute  was  thus  imagined  by  Mr.  Justice  Brown, 
late  of  the  Supreme  Court. 

"Counsel  while  examining  a  witness  is  sitting 
rummaging  over  papers,  or  otherwise  wasting  the 
time  of  Court  and  jury.  The  trial  bids  fair  to 
ii8 


DELAYS  DURING  TRIAL 
become  interminable,  the  patience  of  the  judge 
is  exhausted,  and  he  orders  counsel  to  rise  and 
give  his  whole  attention  to  the  witness. 
Counsel  is  beaten,  and  smarting  under  his  de- 
feat rushes  to  the  legislature,  of  which  he  is 
perhaps  a  member,  with  a  proposition  to  "sit 
down"  upon  a  judge  who  takes  on  such  airs. 
The  legislature,  in  a  burst  of  sympathy  passes 
the  act  — counsel  is  avenged  and  the  judge 
for  the  time  being  is   squelched." 

The  act  was  repealed  in  just  one  year  from  its 
passage. 

And  finally  the  Constitution  of  Nebraska 
provides  that  "the  right  to  be  heard  in  the 
Supreme  Court  on  error  or  appeal  shall  not  be 
denied,"  a  provision  which  compelled  the  Supreme 
Court  of  Nebraska  after  three  trials  to  hear  a 
case  involving  28  cents. 

Mr.  Pound  well  says:   "The  individual  gets 
so  much  fair  play  that  the  public  gets  very  little." 
The  whole  tendency  and  object  of  such  legis- 
lation is  to  make  the  brilliant  advocate  master 
119 


REFORM  OF  LEGAL  PROCEDURE 

of  the  Court  to  the  manifest  impairment  of  jus- 
tice, and  to  give  the  rich  litigant  who  can  pay 
such  an  advocate  an  enormous  advantage.  The 
Bar  should  organize  to  oppose  all  such  laws  and 
to  make  the  judge  a  controlhng  force,  and  not 
"a  mere  umpire"  compelled  "to  sit  quietly  by 
and  see  a  manifest  wrong  done  simply  because 
young  or  inexperienced  comisel  have  overlooked 
or  misapprehended  a  vital  point"  —  to  borrow 
the  words  of  Mr.  Justice  Brown.  As  it  is,  says 
Mr.  Pound,  "The  trial  judge,  without  the 
commanding  position  which  the  common  law 
contemplates,  hampered  by  legislative  restric- 
tions, and  held  in  check  by  reviewing  tribunals 
removed  from  his  difficulties,  is  driven  to  a  cau- 
tious, timid,  dilatory  course,  which  does  not 
comport  with  the  requirements  of  business-like 
administration  of  justice." 

The  unwillingness  to  let  the  judge  charge  the 

jury  on  facts,  for  fear  that  he  may  influence  them 

upduly,  is  the  more  absurd  when  we  remember 

that   in   the   most   compUcated   and  important 

1 20 


DELAYS   DURING   TRIAL 

matters  the  judge  himself  decides  the  facts.  All 
the  cases  which  arise  in  admiralty,  where  the 
amounts  involved  are  sometimes  very  large,  are 
decided  by  the  judge  alone.  In  equity,  where  we 
find  such  cases  as  the  suits  to  dissolve  the 
Standard  Oil  Trust,  and  the  patent  causes  which 
involve  millions  of  dollars  and  affect  us  all  more 
or  less,  to  say  nothing  of  numberless  suits  in 
which  the  public  is  less  interested  but  in  which 
issues  of  great  importance  to  the  parties  are 
tried,  the  judge,  or  often  a  lawyer  appointed  by 
the  judge  to  act  as  master,  determines  the  facts. 
Most  of  the  questions  which  arise  under  the 
Bankrupt  law  are  decided  by  judges  or  referees, 
and  I  need  merely  allude  to  the  questions  of 
fact  which  The  Interstate  Commerce  Commission 
or  Railroad  Commissions  and  like  bodies  deter- 
mine. Is  it  not  ridiculous  that  while  we  give 
judges  sitting  alone  such  powers,  we  will  not 
trust  them  to  help  a  jury  determine  a  question 
of  fact  in  the  pettiest  case  that  is  tried  before 
them? 

121 


REFORM  OF  LEGAL  PROCEDURE 
The  jury,  which  settles  the  facts,  acts  upon 
evidence  which  it  must  remember  more  or  less 
imperfectly;    the  counsel  who  argue  the  case, 
the  judge  who  presides,  and  the  Appellate  Court 
which  reviews,  have  a  stenographic  report  of  all 
that    is    important.    A    juryman    fresh    from 
service  asked  me  whether  pro\dsion  could  not 
be  made  for  giving  the  jury  the  same  help. 
Men's   memories,  after   a   trial   lasting   several 
days  or  very  likely  weeks,  will    certainly  dififer 
as  to  what  the  testimony  of  a  witness  was,  and 
differing   recollections   as   to   the   words  of    an 
important  conversation  perhaps  may  determine 
a  case,  or  at  least  lead  to  long  discussion  between 
men  unused  to  argument.    There  may  be  prac- 
tical   difficulties    in    the    way    of    sending    the 
stenographer's  report  to  the  jury,  though  these 
are  probably,  in  large  part  imaginary,  and  it 
would  involve  more  trouble  and  expense,  but  it 
could  be  left  to  the  judge  in  any  case  whether 
it  should  be  done.      The    failure   to  give  the 
jurors  this  help,  which    the    lawyers    and  the 

122 


DELAYS  DURING   TRIAL 

courts  need,  however,  emphasizes  the  impor- 
tance of  giving  the  jury  the  benefit  of  a  clear 
and  impartial  summing  up,  pointing  out  the 
questions  and  discussing  the  evidence.  The 
people  of  England,  where  this  has  always  been 
done,  are  satisfied.  There  is  no  reason  why  it 
should  not  be  equally  satisfactory  in  this 
country.  If  we  cannot  trust  our  judges  with 
this  power,  we  must  get  judges  whom  we  can 
trust,  and  pay  what  is  necessary  to  command 
their  services.  The  price  is  a  fixed  tenure,  in- 
dependence, adequate  powers,  and  a  proper 
salary,  but  I  will  discuss  this  question  more 
fully  hereafter. 

Thus  far  I  have  been  deahng  with  the  delays 
arising  when  a  case  is  tried  before  judge  or  jury. 
There  are,  however,  many  cases  which  have  to 
go  through  a  process  of  sifting  before  they 
reach  this  stage.  These  are  cases  at  law  or  in 
equity  involving  questions  of  account  or  a  long 
investigation  of  disputed  facts,  which  for  that 
reason  are  sent  for  preliminary  examination  to 
123 


REFORM  OF  LEGAL  PROCEDURE 

a  person  appointed  by  the  court  to  hear  the  case 
and  report  the  facts  and  his  findings.  In  equity, 
the  report  of  a  master  has  the  same  weight  as  the 
verdict  of  a  jury  in  establishing  facts,  and  while 
his  findings  may  be  reviewed  by  the  Court,  there 
is  a  strong  presumption  in  their  favor.  In  other 
cases,  the  report  has  less  probative  force  but  may 
make  a  prima  facie  case  for  the  party  in  whose 
favor  the  magistrate  finds.  Again,  as  in  the 
courts  of  the  United  States,  cases  are  sent  to  an 
examiner  who  takes  the  testimony  of  the  witnesses 
and  reports  the  evidence  to  the  Court  with  no 
conclusion  of  his  own.  The  cases  in  which  a 
master,  auditor,  or  like  officer  is  appointed  to  find 
facts  or  take  evidence,  are,  as  a  rule,  the  most 
important  and  difficult  cases  which  come  before 
the  courts.  They  involve  the  largest  amounts, 
and  often  questions  of  the  greatest  public  impor- 
tance, and  for  every  reason  a  prompt  decision  is 
important.  Yet  it  is  in  just  this  class  of  pro- 
ceeding that  delay  and  expense  reach  their 
maximum. 

124 


DELAYS  DURING  TRIAL 

Courts  and  counsel  are  alike  responsible  for 
the  existing  abuses,  and  the  cause  is  generally 
pure  laziness.  A  long  hearing  interferes  with 
the  docket  of  a  court,  and  with  the  daily  business 
of  counsel.  It  is  much  easier  for  a  judge  to 
act  on  the  conclusions  of  some  one  else  than  to 
hear  testimony,  examine  accounts,  weigh  evidence 
and  reach  his  own  conclusions.  It  is  much  easier 
for  counsel  to  put  a  long  case  over  to  some 
uncertain  time  when  it  can  be  taken  up  conven- 
iently. A  case  once  begun  in  court  must  proceed 
without  interruption  to  the  end,  while  a  case 
before  a  master  may  be  broken  off,  or  hearings 
assigned  for  a  given  day  may  be  postponed, 
whenever  the  convenience  of  counsel  or  magis- 
trate suggests  it.  A  case  before  a  master,  in 
short,  is  something  to  be  taken  up  when  neither 
master  nor  counsel  have  anything  else  more 
important,  or  perhaps  more  agreeable,  to  do. 
After  a  long  interruption,  time  is  necessarily 
wasted  both  before  and  at  the  renewed  hearing 
in  picking  up  the  lost  threads,  a  process  which 
125 


REFORM  OF  LEGAL  PROCEDURE 

must  involve  expense  either  to  counsel  or  client. 
The  more  important  the  case,  the  more  lawyers 
employed,  the  more  eminent  the  counsel  and  the 
magistrate,  the  greater  the  difficulty  in  finding  the 
time  during  a  busy  year  when  all  are  able  and 
willing  to  attend  a  hearing.  The  delays  in  such 
cases,  therefore,  are  sometimes  appalling,  and  if 
a  lawyer  has  a  bad  case  which  he  does  not  want 
to  try,  the  chance  of  wearying  or  worrying  an 
adversary  into  settlement  is  very  great.  To  get 
a  case  sent  to  a  master  often  means  victory,  for 
in  that  field  a  Fabius  may  well  conquer  a 
Hannibal. 

In  the  hands  of  unscrupulous  coimsel,  moreover, 
this  procedure  may  become  a  potent  means  of 
levying  blackmail.  Witnesses  may  be  examined 
day  after  day  for  weeks  at  a  time,  called  upon  to 
search  for  and  produce  books  and  papers  which 
have  long  been  forgotten,  exposed  to  charges  of 
deliberate  destruction  or  concealment  in  case 
some  document  called  for  has  been  destroyed  or 
lost,  and  harassed  in  every  manner  which  the 
126 


DELAYS   DURING   TRIAL 

experience  and  skill  of  counsel  can  suggest.  The 
witness  may  be  taken  from  important  business 
at  great  cost  and  risk  to  his  or  others'  affairs,  he 
may  be  and  generally  is  unused  to  the  sneers 
and  innuendoes  in  which  counsel  too  frequently 
indulge,  and  the  mental  strain  to  which  the 
process  exposes  him  is  as  genuine  torture  as  any 
inflicted  by  the  boot  or  the  rack,  and  as  well 
calculated  to  overcome  the  power  of  resisting  even 
an  unjust  demand.  I  have  known  a  witness 
examined  for  six  weeks,  from  day  to  day,  and 
dying  under  the  strain  when  the  examination  was 
only  half  concluded,  and  any  lawyer  of  large  prac- 
tice can  recall  instances,  perhaps  not  as  extreme, 
but  only  less  so.  The  motive  of  the  counsel  may 
be  entirely  good.  He  may  feel  that  his  client's 
interest  demands  such  measures  or  he  may 
not,  but  the  effect  on  the  witness  is  the  same. 

Were  the  trial  in  court,  the  witness  in  such  a 

case  would  be  protected.     No  such  prolonged 

examination  would  be  permitted,  for  the  judge 

would  interfere  and  shorten  the  process,  but  a 

127 


REFORM  OF  LEGAL  PROCEDURE 

master  or  an  auditor,  though  clothed  with  the 
power  to  exclude  evidence  or  stop  examination, 
is  naturally  and  justly  reluctant  to  exercise  this 
power  strictly.  He  may  have  a  decided  opinion 
as  to  the  law,  or  as  to  the  value  of  evidence, 
but  when  that  opinion  is  questioned  by  counsel, 
he  remembers  that  he  is  only  preparing  the  case 
for  the  Court  and  that  the  Court  may  not  agree 
with  him.  He  feels  that  it  is  his  duty  to  let  the 
Court  have  the  means  of  passing  on  any  point 
which  counsel  wish  to  argue,  and  therefore  to 
put  the  record  in  such  form  as  to  present  all 
that  either  counsel  considers  important  to  the 
decision  of  every  question  which  is  raised.  He 
has  nominal  power  to  regulate  the  hearing,  but 
practically  he  can  only  suggest  and  make  rulings 
for  the  record.  If  his  authority  is  disregarded, 
he  may  ask  the  Court  to  enforce  it,  but  an  appli- 
cation to  the  Court  is  not  pleasant;  it  is  difi&cult 
to  reproduce  in  court  the  situation  before  the 
master,  and  hence  the  Court  is  rarely  asked  to 
intervene. 

128 


DELAYS  DURING  TRIAL 
If  the  magistrate  is  an  examiner  appointed  to 
take  evidence,  he  has  no  authority  to  exclude  any- 
thing, but  can  only  see  that  the  scribe  or  ste- 
nographer records  correctly  all  that  is  said,  either 
by  witness  or  counsel.  Whether  the  evidence  is 
competent  or  flagrantly  incompetent,  whether  the 
objections  of  counsel  are  unnecessarily  verbose 
and  vexatious,  or  entirely  proper,  they  must  be 
written  out,  and  the  result  is  often  a  mass  of 
irrelevant  matter  collected  at  great  expense  of 
time  and  money,  and  disregarded  alike  by 
Court  and  counsel. 

I  have  taken  testimony  in  a  railroad  case  from 
Boston  to  Mobile  and  in  various  intermediate 
cities,  occupying  the  time  of  a  master,  some 
seven  counsel,  and  various  stenographers,  for  five 
or  six  months,  and  it  was  afterwards  printed. 
The  whole  enterprise  involved  very  large  expense 
to  the  parties,  yet  not  one  word  of  that  testi- 
mony was  considered  by  the  Court  which  heard 
the  case,  for  it  ruled  that  the  plaintiff  had  no 
standing  to  present  his  claim. 
129 


REFORM  OF  LEGAL  PROCEDURE 

The  following  statement  by  Judge  Hough  of 
New  York,  made  in  deciding  an  important 
patent  suit,  will  be  found  in  a  recent  volume  of 
reports: 

"Note.  —  It  is  a  duty  not  to  let  pass  this 
opportunity  of  protesting  against  the  methods 
of  taking  and  printing  testimony  in  equity, 
current  in  this  circuit  (and  probably  others), 
excused,  if  not  justified,  by  the  rules  of  the 
Supreme  Court,  especially  to  be  found  in  patent 
causes  and  flagrantly  exemplified  in  this  litiga- 
tion. As  long  as  the  Bar  prefers  to  adduce 
evidence  by  written  depositions,  rather  than 
viva  voce  before  an  authoritative  judicial  ofl5cer, 
I  fear  that  the  antiquated  rules  will  remain 
imchanged,  and  expensive  prolixity  remain  the 
best  known  characteristic  of  equity.  But  reforms 
sometimes  begin  with  the  contemplation  of  hor- 
rible examples,  and  it  is  therefore  noted  that 
the  records  in  these  cases,  as  printed,  bound,  and 
submitted,  comprise  36  large  octavo  volumes, 
of  which  more  than  one-half  contain  only  repeated 
130 


DELAYS   DURING  TRIAL 

matter,  i.e.,  identical  depositions,  with  changed 
captions,  and  exhibits  offered  in  more  than  one 
case.  In  reading  the  testimony  of  one  side  in  one 
set  of  cases,  there  were  counted  over  loo  printed 
pages  recording  squabbles  (not  unaccompanied 
with  apparent  personal  rancor)  concerning  ad- 
journments; and  after  arriving  at  this  number 
it  seemed  imnecessary  to  count  further.  In 
many  parts  of  the  record  there  are  not  five 
consecutive  pages  of  testimony  to  be  found 
without  encountering  objections  stated  at  out- 
rageous length,  which  may  serve  to  annoy  and 
disconcert  the  witness,  but  are  not  of  enough 
vitality  to  merit  discussion  in  2,000  pages  of 
briefs.  Naturally  tempers  give  way  under  such 
ill-arranged  procedure,  and  this  record  contains 
language,  uncalled  for  and  unjustifiable,  from 
the  retort  discourteous  to  the  He  direct.  And  all 
this  lumbers  up  the  court  record-room,  while 
clients  pay  for  it!  Even  when  evidence  in 
equity  was  taken  by  written  answers  to  carefully 
drawn  interrogatories,  the  practice  was  not 
131 


REFORM  OF  LEGAL  PROCEDURE 

marked  by  economy  or  celerity;  but  stenog- 
raphy and  typewriting,  the  phonograph  and 
linotype,  have  become  common  since  our  rules 
were  framed,  have  made  compression  and  brev- 
ity old-fashioned,  increased  expense,  and  often 
swamped  Bench  and  Bar  alike  by  the  quantity, 
rather  than  the  quality,  of  the  material  offered  for 
consideration.  Motions  to  expunge  and  limit 
cross-examination  should  have  been  made  in 
these  cases,  though  they  are  feeble  remedies, 
exposing  counsel  to  personal  reproach,  and 
rendering  judges  afraid  of  keeping  out  evidence 
what  they  cannot  (on  motion,  at  all  events) 
understand.  But  the  radical  difficulty,  of  which 
this  case  is  a  striking  (though  not  singular) 
example,  will  remain  as  long  as  testimony  is 
without  any  authoritative  judicial  officer  present, 
and  responsible  for  the  maintenance  of  discipline 
and  the  reception  or  exclusion  of  testimony." 

When  we  consider  that  the  method  of  taking 
evidence  which  Judge  Hough  so  strongly  con- 
demns is  the  method  prescribed  by  the  rules  of 
132 


DELAYS   DURING   TRIAL 

the  Federal  Courts  in  equity  suits,  that  in  this 
way  are  tried  the  most  important  cases  which 
engage  the  attention  of  those  courts,  such  as  the 
suits  to  dissolve  the  great  trusts,  the  suits  over 
the  sewing  machine,  the  telephone,  and  all  other 
patents,  to  say  nothing  of  other  suits  involving 
the  vital  interests  of  the  parties  and  often  of 
public  importance,  we  may  begin  to  appreciate 
the  formidable  obstacles  which  confront  the  im- 
happy  Htigant  who  is  obliged  to  assert  or  defend 
his  rights  in  an  equity  suit  brought  in  the  courts 
of  the  United  States.  I  cannot  see  how  any  but 
a  very  rich  man  or  combination  of  men  can  afford 
to  assert  or  deny  rights  under  a  patent,  or  how  a 
poor  patentee  can  obtain  justice  against  a  rich 
infringer.  Such  a  system  in  an  enlightened  age 
and  country  like  our  own  is  intolerable. 

The  proceedings  before  masters,  auditors, 
examiners,  and  similar  officers  bearmg  different 
names  in  different  jurisdictions,  are  prolific 
sources  of  delay,  expense,  and  such  other  evils 
as  I  have  pointed  out,  for  two  principal  reasons. 
133 


REFORM  OF  LEGAL  PROCEDURE 

The  first  is  the  uncertainty  as  to  when  the  case 
will  be  tried;  the  second  is  the  waste  of  time  and 
money  expended  in  trying  immaterial  issues,  in 
hearing  incompetent  evidence,  and  in  alterca- 
tions between  counsel  whose  feelings  are  strongly 
enlisted  and  whose  expressions  are  not  controlled 
by  any  tribunal  which  they  fear  to  offend. 

The  remedy  is  to  cut  down  the  function  of 
these  ofl&cers  as  much  as  possible,  and  to  insure 
a  prompt  hearing  of  cases  which  are  committed 
to  them.  For  example,  the  Court  before  sending 
a  case  to  a  master  should  hear  the  parties  and 
decide  such  questions  as  it  can  without  a  master's 
assistance.  It  should  define  the  issues  com- 
mitted to  the  master,  and  instruct  him  as  to 
how  they  should  be  tried  as  far  as  possible.  The 
Court  should  insist  on  such  a  hearing,  whether 
counsel  agree  to  a  reference  or  not,  and  in  many 
cases  it  would  become  evident  that  the  Court 
could  deal  with  the  whole  case  more  expedi- 
tiously and  satisfactorily  without  a  master.  For 
example,  an  eminent  judge  in  my  own  state  told 
134 


DELAYS  DURING  TRIAL 

me  recently  that  two  counsel  came  before  him 
with  a  motion  that  a  case  be  referred  to  a  master, 
both  sides  agreeing  that  it  was  necessary.  He 
made  some  inquiry  as  to  the  nature  of  the  dispute 
and  the  time  likely  to  be  consumed  in  hearing 
the  case.  The  answer  to  the  last  question  was 
"Two  weeks."  "I  will  hear  the  case,"  he  said, 
and  as  he  said  it  he  noticed  that  the  faces  of 
both  counsel  dropped.  They  were  called  upon 
to  face  at  once  a  trial  which  they  had  hoped  to 
postpone.  He  did  hear  it  in  two  days,  and  the 
dispute  between  the  parties  was  thus  settled 
promptly  instead  of  dragging  along  for  months, 
and  perhaps  years.  There  can  be  no  doubt  that 
a  scrutiny  by  the  Court  of  every  case  before  it  is 
committed  to  a  master  would  largely  reduce  the 
amount  of  work  now  confided  to  such  oflEicers. 
So  in  dealing  with  cases  now  sent  to  examiners, 
whose  only  fimction  is  to  report  the  evidence 
taken  before  them.  The  rule  should  be  that  all 
suits  should  he  heard  by  the  Court  itself.  It 
involves  less  labor  and  insures  better  results. 
135 


REFORM  OF  LEGAL  PROCEDURE 

The  labor  will  be  less,  because  the  Court  now 
must  read  all  the  evidence,  material  and  imma- 
terial, and  it  takes  little  more  time  to  hear  than 
to  read  what  a  witness  says.  If  only  material 
testimony  were  heard  and  immaterial  excluded, 
the  total  bulk  of  testimony  would  be  reduced  and 
time  saved,  while  much  wrangling  which  now 
interrupts  the  proceedings  would  be  avoided. 
The  results  will  be  better,  because  the  judge 
who  hears  a  witness  can  weigh  the  value  of  his 
testimony  much  better  than  when  he  simply 
reads  it.  The  delay  in  answering,  the  troubled 
expression,  the  change  of  color,  the  embarrassed 
maimer,  which  are  apparent  to  the  eye  and  are 
often  convincing  proof  of  falsehood,  are  not 
preserved  in  the  printed  record,  and  a  reply 
over  which  a  witness  has  hesitated  for  some  time 
reads  as  if  given  promptly  and  clearly.  The 
words  alone  appear,  and  they  are  often  the  least 
valuable  part  of  the  witness's  evidence.  How 
often  have  you  met  some  worthless  beggar  in  the 
street  who  has  told  you  some  pathetic  tale  of 
136 


DELAYS  DURING  TRIAL 
misfortune  and  want.  If  his  words  were  printed 
they  would  touch  the  heart  of  any  reader,  but 
you  who  see  the  watery  eye,  and  smell  the 
breath  of  the  speaker,  know  perfectly  well  that 
he  does  not  deserve  help,  and  that  any  alms 
you  might  give  him  would  be  worse  than  wasted. 
This  truth  is  recognized  by  every  man  who 
ever  tried  a  case,  and  appellate  tribunals  in  deal- 
ing with  the  decisions  of  juries  or  trial  courts 
constantly  give  greater  weight  to  their  conclu- 
sions because  they  saw  and  heard  the  witnesses. 
It  is  very  unfortimate  that  these  aids  to  a  just 
decision  are  so  largely  denied  to  htigants  in 
the  courts  of  the  United  States  and  all  other 
courts  which  decide  on  a  written  report  of  the 
evidence. 

Were  the  rule  adopted  that  the  Court  itself 
should  hear  the  evidence,  the  tribunal  called 
upon  to  try  a  suit  in  equity  would  first  hear  the 
parties  and  ascertain  the  character  of  the  evidence 
to  be  rehed  upon.  Counsel  could  be  called  upon 
to  state  whether  he  had  any  witnesses  that  could 
137 


REFORM  OF  LEGAL  PROCEDURE 

not  be  present  at  the  trial,  and  why.  The 
Court  could  then  decide  what  testimony  should 
be  taken  by  deposition,  and  within  what  time, 
bearing  in  mind  that,  as  a  rule,  the  witness  can  be 
brought  to  the  tribunal  more  easily  and  cheaply 
than  the  examiner  and  counsel  can  be  carried 
to  the  witness.  The  work  of  the  examiner  can 
in  this  way  be  much  curtailed  without  increasing 
the  Court's  labors  and  with  great  advantage  to 
the  parties.  To  have  one  magistrate  hear  and 
report  and  another  read  and  decide  is  in  many 
cases  an  imnecessary  dupHcation  of  labor. 

To  seciure  a  prompt  trial  before  master  or 
auditor  the  hearings  before  them  should  not  be 
left  to  the  convenience  of  counsel.  The  amount 
of  important  work  now  confided  to  such  judicial 
officers  is  sufficient  to  justify  the  creation  of 
regular  tribunals  to  do  this  work.  To-day  there 
are  certain  lawyers  who  are  much  employed  as 
auditors  and  masters,  and  many  others  who  are 
employed  occasionally.  They  are  poorly  paid, 
they  can  never  be  sure  that  the  days  which  they 
138 


DELAYS  DURING  TRIAL 

appoint  for  hearings  will  not  be  lost  because 
counsel  at  the  last  moment  decide  to  postpone, 
and  there  is  therefore  danger  that  the  work  will 
fall  into  the  hands  of  men  whose  time  is  not 
very  valuable,  especially  as  busier  men  find  it 
harder  to  waste  time.  There  are  some  who 
seek  such  employment  at  the  hands  of  their 
friends,  and  who,  desiring  more,  cannot  help 
respecting  the  hand  that  feeds  them.  As  the 
Court  generally  asks  the  parties  to  agree  upon  the 
man,  there  is  almost  always  a  struggle  between 
counsel  to  select  some  one  who  from  temperament 
or  association  is  at  least  certain  not  to  favor  the 
other  side.  In  a  word,  the  whole  system  is 
opposed  to  the  fundamental  principle  which  was 
well  stated  by  high  authority  in  these  words: 
"The  tribunal  should  always  wait  the  case,  not 
the  case  the  tribunal."  In  other  words,  an 
impartial  and  competent  court  or  magistrate 
should  be  created  to  try  all  cases  that  arise,  and 
not  a  special  tribunal  be  selected  by  the  con- 
tending parties  for  a  particular  case.  A  perma- 
139 


REFORM  OF  LEGAL  PROCEDURE 

nent  court  follows  fixed  rules  of  law,  and  avoids 
making  bad  precedents.  The  special  tribunal 
only  settles  the  dispute  before  it,  and  often  takes 
a  short  cut  across  the  law  to  reach  its  conclusion. 
Referees  are  apt  ''to  split  the  difference." 

In  any  jurisdiction  where  there  is  enough  work 
there  should  be  permanent  auditors  or  masters 
adequately  paid  and  able  to  regulate  and  enforce 
the  attendance  of  parties  before  them.  They 
should  stand  as  courts,  and  trials  before  them 
should  proceed  from  day  to  day  as  in  courts, 
except  for  good  cause  shown.  It  should  not 
be  possible  to  turn  the  parties  out  of  court 
because  their  case  is  difficult  and  sure  to  oc- 
cupy much  time,  without  taking  adequate  meas- 
ures to  secure  prompt  action  from  the  tribunal 
to  which  the  burden  of  dealing  with  their  dispute 
is  transferred.  The  present  system  is  indefen- 
sible. To  apply  the  remedies  which  I  have 
suggested  we  must  have  able,  strong,  and 
courageous  judges.  Without  these  no  courts 
can  succeed. 

140 


^ 


DELAYS  DURING  TRIAL 

Indeed,  the  suggestion  that  before  sending  a 
case  to  a  master  or  auditor  the  Court  have  a 
preliminary  hearing,  and  decide  all  questions 
which  it  can  without  the  aid  of  such  an  ofl&cer, 
might  well  be  extended.  If  there  were  a  judge 
before  whom  either  counsel  in  a  case  might 
summon  his  opponent  with  a  view  of  determining 
what  the  real  questions  at  issue  were  and  pro- 
viding for  their  prompt  determination,  much  time 
would  be  saved  to  courts  and  parties.  A  justice 
sitting  on  the  Supreme  Bench  of  the  United 
States,  and  of  large  judicial  experience  before  he 
became  a  member  of  that  tribimal,once  said  to  me 
in  speaking  of  cases  heard  before  it:  "They  are 
generally  decided  at  the  argument.  It  is  said 
that  in  battle  the  opposing  lines  rarely  cross 
bayonets,  for  before  they  meet  one  or  the 
other  gives  way.  So  in  court,  one  or  the  other 
side  so  clearly  preponderates  at  the  argument 
that  the  decision  is  easy." 

A  wise  and  experienced  judge  trying  to  ascer- 
tain the  real  question  between  the  parties  in  a 
141 


REFORM  OF  LEGAL  PROCEDURE 

case,  and  upon  what  theories  of  fact  and  law  each 
was  proceeding,  could  clear  away  a  great  deal 
of  rubbish,  could  make  the  case  easier  for  the 
Court  to  try,  could  determine  the  issues,  and  how 
they  should  be  tried,  could  point  out  their  errors 
to  counsel,  and  in  many  cases  could  bring  about 
a   settlement,    for   a  very   large  proportion   of 
Htigants  would  yield  to  his  advice.  _________ -^' 

This  is  not  mere  theory.  The  plan  has  been 
adopted  in  the  English  Courts  which,  by  a  series 
of  rules,  has  made  it  possible  for  counsel  to 
summon  his  opponent  before  a  judge  and  upon 
a  proper  showing  secure  directions  which  speed 
the  cause.  Let  me  read  you  specimens  of  these 
rules. 

380.  "  Where  in  any  cause  or  matter  it  appears 
to  the  Court  or  a  judge  that  the  issues  of  fact  in 
dispute  are  not  sufficiently  defined,  the  parties 
may  be  directed  to  prepare  issues,  and  such 
issues  shall,  if  the  parties  differ,  be  settled  by  the 
Court  or  a  judge. 

381.  "  The  Court  or  a  judge  may,  at  any  stage 

142 


DELAYS  DURING  TRIAL 

of  the  proceedings  in  a  cause  or  matter,  direct 
any  necessary  inquiries  or  accounts  to  be  made 
or  taken,  notwithstanding  that  it  may  appear 
that  there  is  some  special  or  further  relief  sought 
for  or  some  special  issue  to  be  tried,  as  to  which 
it  may  be  proper  that  the  cause  or  matter  should 
proceed  in  the  ordinary  manner. 

657a.  "  Whenever  an  application  shall  be  made 
before  trial  for  an  injunction  or  other  order,  and 
on  the  opening  of  such  application,  or  at  any 
time  during  the  hearing  thereof,  it  shall  appear 
to  the  judge  that  the  matter  in  controversy  in 
the  cause  or  matter  is  one  which  can  be  most 
conveniently  dealt  with  by  an  early  trial,  without 
first  going  into  the  whole  merits  on  affidavit  or 
other  evidence  for  the  purposes  of  the  applica- 
tion, it  shall  be  lawful  for  the  judge  to  make  an 
order  for  such  trial  accordingly,  and  to  direct 
such  trial  to  be  held  at  the  next  or  any  other 
assizes  for  any  place,  if  from  local  or  other 
circumstances  it  shall  appear  to  him  to  be 
convenient  so  to  do,  and  in  the  meantime  to 
143 


REFORM  OF  LEGAL  PROCEDURE 

make  such  order  as  the  justice  of  the  case  may 
require. 

967.  "A  Court  or  a  judge  shall  have  power  to 
enlarge  or  abridge  the  time  appointed  by  these 
rxiles,  or  fixed  by  any  order  enlarging  time, 
for  doing  any  act  or  taking  any  proceeding,  upon 
such  terms  (if  any)  as  the  justice  of  the  case  may 
require,  and  any  such  enlargement  may  be 
ordered,  although  the  application  for  the  same 
is  not  made  until  after  the  expiration  of  the  time 
appointed  or  allowed." 

Such  able  and  experienced  lawyers  as  alone  are 
appointed  to  the  English  Bench,  when  brought 
into  direct  and  somewhat  informal  contact  with 
coimsel,  can  boil  the  case  down  and  often  dispose 
of  it  entirely  in  a  comparatively  short  hearing. 
It  would  surprise  the  members  of  our  Bar  to 
see  the  Privy  Council,  or  a  County  Court,  simplify 
a  case  and  expedite  the  hearing. 


144 


IV 

DELAY  IN  APPELLATE  COURTS 

^  I  ^HUS  far  I  have  dealt  with  the  delays 
-■-  which  beset  the  path  of  the  suitor  be- 
fore he  gets  his  first  decision.  This  unhappily 
is  too  often  only  a  beginning.  There  is  still 
before  him  a  long  vista  of  appeals,  and  possible 
new  trials.  May  I  give  you  an  illustration  of 
what  is  possible.  A  Borough  President,  in  New 
York,  summarily  removed  a  chief  of  bureau, 
and  the  latter  questioned  his  power  to  do  it 
without  a  hearing.  One  would  say  that  the 
question  was  simple  and  that  it  should  be  de- 
termined at  once.  Yet  the  case  which  the 
removed  officer  brought  to  test  the  question 
had  forty-seven  hearings  at  Special  Terms  of 
the  Supreme  Court,  twenty-one  hearings  at  trial 
terms,  eight  appeals  were  heard  and  decided 
145 


REFORM  OF  LEGAL  PROCEDURE 

in  the  Appellate  Division,  and  two  in  the  Court 
of  Appeals.  At  the  end  of  six  years  three  un- 
heard appeals  were  pending,  and  $38,000  of 
back  salary  depended  on  the  final  decision, 
while  the  cost  of  the  litigation  to  the  taxpayers 
was  even  more.  I  take  these  facts  from  the 
New  York  newspapers,  but  I  spare  you  their 
indignant  and  wholly  just  reflections  upon  such 
an  exhibition  of  the  law's  incompetency. 

Again,  the  Franchise  Tax  law  of  New  York 
was  passed  in  1899.  It  was  held  constitutional 
by  every  court  of  New  York  and  by  the  Supreme 
Court  of  the  United  States.  Nearly  five  years 
later,  two-thirds  of  the  tax  for  ten  years  was  still 
impaid,  and  the  public  service  corporations  were 
still  Utigating  about  the  assessment.  New 
York  saw  before  it  an  indefinite  vista  of  delay, 
yet  taxes  should  be  collected  promptly. 

No  wonder  the  Committee  appointed  by  the 
Association  of  the  Bar  of  the  City  of  New  York 
in  a  report  to  that  body  says: 

"Many   experienced   judges   claim   that   our 
146 


DELAY  IN  APPELLATE   COURTS 

system  of  practice  has  developed  into  an  appellate 
system  based  upon  the  fundamental  idea  that 
the  trial  and  decision  are  presumptively  wrong. 
.  .  .  Instead  of  a  system  of  single  trials  with  a 
minority  of  reversals  on  the  merits,  as  in  juris- 
dictions which  have  modernized  their  practice, 
a  system  of  several  trials  of  almost  every  impor- 
tant case,  resulting  from  technical  reversals  not 
affecting  the  merits,  has  arisen  .  .  .  making 
the  law  a  game  rather  than  a  science." 

And  they  quote  Justice  O'Gorman,  the  new 
senator  from  New  York,  who  says: 

"One  of  the  gravest  faults  with  our  present 
mode  of  trial  is  the  ease  and  frequency  with 
which  judgments  are  reversed  on  technicalities 
which  do  not  effect  the  merits  of  the  case  and 
which  at  no  stage  have  affected  the  merits." 

Can  you  have  a  severer  indictment  than  this 
of  Courts  which  presumably  sit  to  do  justice? 
In  striving  for  perfection  in  matters  immaterial, 
what  is  material  is  forgotten,  and  justice  is 
ignored. 

147 


REFORM  OF  LEGAL  PROCEDURE 

The  English  Court  of  Appeals,  on  an  average, 
grants  only  twelve  new  trials  a  year,  and  these 
upon  the  merits. 

It  justifies  the  words  of  Lord  Justice  Bowen 
spoken  more  than  twenty  years  ago.  "It  may 
be  asserted  without  fear  of  contradiction  that 
it  is  not  possible  in  the  year  1887  for  an  honest 
Htigant  in  Her  Majesty's  Supreme  Court  to  be 
defeated  by  any  mere  technicaHty,  any  slip,  any 
mistaken  step  in  his  Htigation."  Cannot  we 
do  what  the  EngHsh  have  done? 

The  rule  should  be  that  from  the  trial  Court 
there  should  be  an  appeal  to  a  bench  of  judges, 
but  only  one  appeal.  A  citizen  has  the  right  to 
a  trial  of  his  case,  and  to  a  review  of  the  proceed- 
ings at  the  trial  by  a  tribunal  of  competent 
lawyers.  This  is  necessary,  that  the  law  may 
be  kept  uniform,  and  that  a  man's  rights  may 
not  depend  on  decisions  made  hastily  in  the 
heat  of  a  trial.  The  law  imder  which  the  com- 
munity lives  should  be  settled  after  cool  delibera- 
tion. We  should  take  pains  to  make  the  tribunal 
148 


DELAY  IN  APPELLATE   COURTS 
to  which  this  task  is  confided  competent  in  every 
way,  but  when  this  has  been  done  nothing  is 
gained  by  giving    the   parties  another  hearing 
before  another  appellate  court.     The  first  may 
of    course    make    mistakes,    but    so    may   the 
second.     It  is   in   most    cases   more  important 
that  the  law  should  be  settled  than  how  it  is 
settled.     Men  accommodate  themselves  to  any 
fixed  rule  of  conduct,  and  very  bad   errors   are 
soon  corrected  by  the  court  which  makes  them. 
The  theory  is  that  a  final  court  of  great  and 
perhaps  more  highly  paid  lawyers  is  more  reliable. 
Then  why  have  the  intermediate  appeal?     Some 
bench  of  lawyers  must  finally  settle  the  law  in 
each  jurisdiction,  so  far  as  the  courts  can  settle 
it.     Why  not  have  one  such  court  and  make  it  as 
good  as  the  lot  of  humanity  will  permit,  rather 
than  establish  a  poor  court  to  make  errors  for 
the  good  court  to  correct.    Lawyers  may  and 
do  differ  as  well  as  doctors,    but    the   highest 
court  is  always  right  because  it  is  the  highest. 
Nothing   can   destroy   the   layman's   confidence 
149 


REFORM  OF  LEG.\L  PROCEDURE 

in  the  law  more  than  to  have  one  bench  of  lawyers 
overrule  another.  It  is  better  and  cheaper  to 
have  only  one  appellate  court  and  make  that 
worthy  of  public  confidence.  Were  this  rule 
adopted,  the  delays  arising  from  successive 
appeals  now  possible  in  many  states  would  be 
avoided. 

To  this  rule  there  is  one  exception.  Every 
citizen  of  the  United  States  lives  tmder  two 
systems  of  law.  The  State  courts  administer 
one  system,  the  Federal  courts  another,  and  on 
many  questions  the  rules  estabUshed  by  the  two 
tribimals  differ  in  the  same  state.  Not  only  this, 
but  the  laws  of  the  different  states  vary  widely 
in  many  respects,  and  hence  the  importance  of 
the  very  common  question  whether  in  a  given 
situation  the  lex  loci  contractus  or  the  lex  fori 
shall  govern,  and  of  other  questions  arising  from 
the  conflict  of  laws.  So  far  as  the  differences 
between  the  laws  of  the  states  are  concerned, 
these  are  best  dealt  with  by  imiform  legislation, 
and  for  many  years  the  American  Bar  Association 
150 


DELAY  IN  APPELLATE  COURTS 

has  been  laboring  to  promote  this  uniformity 
in  many  matters  with  great  success.  The  states 
learn  readily  from  each  other,  and  a  new  law 
adopted  by  one  is  soon  copied  by  others,  as  the 
AustraHan  ballot  law  went  from  state  to  state. 

As  between  the  Federal  and  the  State  courts 
in  the  same  state,  the  differences  also  must  be 
dealt  with  by  legislation  in  most  cases,  and  here 
imiformity  is  most  desirable.  To-day,  a  man's 
rights  may  change  as  often  as  he  crosses  the 
boimdary  of  a  state,  or  if  he  remains  at  home  he 
may  find  one  law,  if  his  case  is  tried  in  the  State 
court,  and  another,  if  it  is  removed  to  a  court  of 
the  United  States.  Upon  identical  facts,  he 
may  owe  one  duty  to  his  fellow-citizen  and 
another  to  a  foreigner. 

It  would  be  a  great  blessing  to  the  people 
of  this  coimtry  if  they  could  live  under  imiform 
laws,  if  the  status  of  husband  and  wife,  the  law 
of  marriage  and  divorce,  statutes  regulating 
corporations  and  the  rights  and  Uabilities  of 
their  stockholders,  the  statute  of  limitations 
151 


REFORM  OF  LEGAL  PROCEDURE 

and  the  methods  of  assessing  and  collecting 
taxes  were  uniform,  or  properly  accommodated 
to  each  other.  To-day  the  laws  which  fix  in- 
heritance and  transfer  taxes  are  so  nimaerous 
and  ill-assorted  that  a  man  is  driven  more  and 
more  to  invest  his  money  in  his  own  state  rather 
than  run  the  risk  of  paying  two,  three,  or  four 
inheritance  taxes  on  the  same  investment,  and 
in  time  it  will  be  found  that  the  free  passage  of 
capital  from  state  to  state,  so  essential  to  the 
development  of  this  country,  will  be  seriously 
hampered  to  the  disadvantage  of  us  all.  It  has 
been  well  said  that,  to-day,  a  man  cannot  afford 
to  die.  If  you  think  that  four  taxes  on  one 
investment  is  an  instance  of  tropical  imagina- 
tion, let  me  set  you  right.  A  lady  dies  in 
California.  She  is  the  beneficiary  imder  a 
Massachusetts  trust,  and  the  trustees  resident 
in  Massachusetts  have  invested  in  the  stocks  of 
Illinois  or  New  York  corporations.  She  has 
power  to  dispose  of  the  trust  property  by  will, 
and  does  so.  California  claims  a  tax  because 
152 


DELAY  IN  APPELLATE  COURTS 

she  resided  there,  New  York  and  lUinois  because 
shares  in  their  corporations  passed  in  those 
states,  Massachusetts  because  the  trust  property 
passed  there,  and  the  United  States  its  tax  on 
the  whole.  This  medley  of  conflicting  laws 
must  be  dealt  with  by  lawyers  and  the  legisla- 
tures of  the  states,  and  when  you  are  members  of 
these  bodies  you  may  well  bear  in  mind  this 
situation,  and  help  your  profession  and  your 
country  by  trying  to  improve  it. 

But  the  interpretation  of  the  law  when  passed 
should  be  uniform,  and  for  that  reason  the 
suggestion  that  there  should  be  only  one  appeal 
in  each  case  will  not  apply  in  cases  which  arise 
imder  the  constitution  and  laws  of  the  United 
States.  It  is  necessary  that  there  should  be  an 
intermediate  appellate  court,  like  the  Circuit 
Court  of  Appeals,  to  deal  finally  with  perhaps 
most  of  the  cases  that  arise  in  the  Federal  Courts 
of  each  circuit,  for  the  Supreme  Court  of  the 
United  States  would  be  overwhelmed  if  every 
such  case  could  be  brought  before  it.  There  is 
153 


REFORM  OF  LEGAL  PROCEDURE 

however  a  large  class  of  cases  where  questions 
of  great  importance  to  the  public  as  a  whole  are 
decided  differently  by  different  Circuit  Courts 
of  Appeal.  The  interpretations  of  the  Sherman 
Anti-Trust  Law  vary  considerably  in  different 
circuits,  and  cases  in  which  local  feeling  or  preju- 
dice is  aroused  often  go  wrong,  as  has  happened 
where  the  liability  of  a  city  or  town  to  pay 
its  bonds  has  been  questioned.  Again,  the  prac- 
tice in  regard  to  the  appointment  of  receivers, 
in  theory  an  interlocutory  but  in  effect  often  a 
final  decree,  has  been  affected  injuriously  by  the 
varying  action  of  different  judges,  and  is  now 
in  serious  confusion.  These  differences  can  only 
be  removed  by  the  decision  of  the  Supreme 
Court,  and  for  that  reason  and  in  such  cases 
appeals  to  that  court  should  be  facilitated, 
and  a  method  provided  of  promptly  determining 
for  example  whether  a  court  has  erred  in  taking 
an  individual's  property  from  him,  as  is  now 
not  infrequently  done  by  the  appointment  ex 
parte  of  a  receiver.  Such  a  decree  may  ruin  a 
154 


DELAY  IN  APPELLATE   COURTS 

man  or  a  corporation,  and  the  injured  party 
should  not  be  obliged  to  wait  long  before  it  is 
decided  finally  whether  the  decree  is  right.  It 
is  not  possible  within  the  limits  of  these 
lectures  to  do  more  than  point  out  that  where 
the  law  of  the  United  States  must  be  uniform, 
the  right  to  invoke  the  judgment  of  the  Su- 
preme Court  should  be  clearly  secured  and 
the  process  made  easy. 

The  statutes  and  rules  which  regulate  appeals 
from  one  federal  court  to  another  are  unnecessarily 
cumbrous  and  confused.  For  example,  in  certain 
classes  of  cases  it  is  difficult  to  decide  with  all 
the  light  that  the  decisions  of  the  Supreme  Court 
can  give,  whether  an  appeal  from  the  Circuit 
Court  should  be  taken  to  the  Circuit  Court  of 
Appeals  or  to  the  Supreme  Court  of  the  United 
States,  and  the  choice  once  made  is  final.  Yet 
if  the  litigant  chooses  wrong  the  error  is  fatal.  It 
should  be  possible  with  proper  care  and  time  to 
remove  such  reproaches  to  our  system.  The 
whole  federal  practice  can  be  much  simplified. 
155 


REFORM  OF  LEGAL  PROCEDURE 

Assuming  that  there  is  to  be  but  one  appellate 
court  for  almost  all  cases,  what  are  the  delays 
which  attend  any  appeal,  and  how  can  they  be 
avoided? 

There  are  of  course  the  delays  which  arise  in 
settling  the  bill  of  exceptions  or  other  statement 
of  the  case  on  which  it  is  carried  up.  These 
arise  from  the  business  or  laziness  of  counsel  and 
the  indulgence  of  these  by  the  Court.  For  them 
there  is  no  satisfactory  remedy  except  a  keener 
professional  conscience  on  the  part  of  the  Bar 
and  less  elastic  rules  or  practice  on  the  part  of 
the  Bench.  The  tendency  is  to  extend  by 
legislation  the  time  within  which  the  record  for 
the  appeal  can  be  made  up,  but  this  should  be 
stoutly  combated.  There  should  be  a  short 
time  fixed  by  rule,  with  discretion  in  the  Court 
to  extend  it  for  good  reason,  and  that  discretion 
should  be  exercised  sparingly.  My  professional 
experience  has  satisfied  me  that  when  a  thing 
must  be  done  within  a  certain  time  it  is  done, 
and  every  postponement  makes  it  harder  to  do. 
IS6 


DELAY  IN  APPELLATE   COURTS 

It  is  easier  to  complete  a  task  which  has  been 
begun,  than  to  do  it  over  again  from  the  begin- 
ning, and  when  one  returns  after  an  interval 
to  the  preparation  of  an  argument  or  a  record, 
he  often  finds  it  necessary  to  start  at  the  begin- 
ning again.  The  exceptions  should  be  settled 
while  the  trial  is  recent,  and  its  events  fresh  in 
the  memory. 

It  is  in  deciding  whether  or  not  to  carry  a 
case  further  that  a  lawyer  needs  to  remember 
that  he  is  an  officer  of  the  Court,  whose  duty  it 
is  to  help  in  securing  justice,  and  not  the  willing 
agent  of  an  angry  or  imscrupulous  client,  whose 
purpose  is  to  delay  or  defeat  it.  "It  must  be 
presumed,"  said  Mr.  Justice  Clifford  of  the 
Supreme  Court  of  the  United  States,  "that  it  is 
the  desire  of  the  members  of  this  Bar  to  have  the 
Court  decide  right,"  a  violent  presumption  in 
some  cases  perhaps,  but  which  every  honorable 
lawyer  should  help  to  justify.  He  should  have 
the  strength  and  courage  to  resist  his  client,  and 
to  carry  up  only  substantial  questions. 
157 


REFORM  OF  LEGAL  PROCEDURE 

The  true  attitude  of  a  lawyer  may  perhaps  be 
illustrated  by  an  experience  of  my  own.  I 
advised  a  client  that  another  man  owed  him  a 
very  large  sum  of  money.  Presently  the  other's 
coimsel  appeared  in  my  ofl&ce,  and  said,  "I  hear 
you  have  advised  A  that  my  chent  B  owes  him 
$100,000."  "Yes,"  said  I,  "I  have."  "I  sup- 
pose," rephed  he,  "that  you  rely  on  the  case  of 
Whitcomb  v.  Converse.''^  "Yes,"  said  I.  "I  do." 
"Have  you  got  the  report  here?  "  he  continued. 
"If  so,  let  me  have  it."  I  handed  it  to  him.  "I 
suppose,"  he  said,  "that  you  rely  on  this  passage 
in  the  opinion."  I  answered  that  I  did. 
"Don't  you  see,"  he  went  on,  "that  these  words 
can  be  read  so  as  to  give  the  passage  a  different 
meaning,  and  that  if  so  read,  your  advice  is 
wrong?"  I  looked  at  the  passage  again  and 
said,  "Perhaps;  but  I  should  not  be  willing  to 
advise  my  chent  that  such  was  the  true  inter- 
pretation." "No  more  should  I,"  he  concluded. 
"It  is  not.  The  answer  to  my  suggestion  is 
clear,"  and  he  stated  it.  "  I  shall  advise  my 
158 


DELAY  IN  APPELLATE  COURTS 

client  to  pay,"  and  he  did  pay.  A  weaker 
man  would  have  carried  the  question  up  and 
lost  his  case  after  delaying  my  client  for  a 
year  or  more,  and  putting  both  parties  to  large 
expense. 

All  points  are  not  "free  and  equal,"  and  a  man 
injures  the  parties,  the  reputation  of  his  profes- 
sion, the  administration  of  justice,  and  in  the 
long  run  himself,  if  he  wastes  time  and  money  in 
discussing  frivolous  points  or  questions  which, 
however  interesting  in  themselves,  do  not  really 
affect  the  merits  of  his  case.  In  deciding  whether 
to  appeal  or  not,  and  what  questions  to  raise, 
as  well  as  in  arguing  his  case,  counsel  will  do  well 
to  bear  in  mind  the  words  of  Mr.  Justice  Hughes, 
as  recently  reported  in  the  newspapers.  "No 
lawyer  can  render  a  higher  service  either  to  his 
cHent  or  to  the  Court  than  in  the  preparation 
of  a  complete,  candid,  intellectual,  honest  state- 
ment and  argument  of  his  case  to  the  Court 
that  he  addresses.  Sophistries,  evasions,  and  the 
tricks  of  the  pettifogger  are  indefensible  from  an 
159 


REFORM  OF  LEGAL  PROCEDURE 

ethical  standpoint,  and  are  of  less  avail  in  winning 
a  case  than  some  imagine." 

I  cannot  too  strongly  urge  upon  you  all  the 
obligation  "to  delay  no  man  for  lucre  or  malice," 
which  every  lawyer  assumes  when  he  enters  the 
Bar.  Let  me  also  suggest  to  you  that  to  present 
a  sophistical  argument  to  the  Court  is  an  insult 
to  the  intelligence  of  the  Bench.  When  you 
feel  that  your  contention  is  unsound,  it  is  safe 
to  assume  that  this  will  be  at  least  equally 
obvious  to  the  trained  minds  of  the  judges. 
No  one  Ukes  to  be  taken  for  a  fool,  and  it  is 
well  to  remember  Hosea  Biglow's  aphorism: 
"T'ain't  a  knowin'  kind  of  cattle  that  gits 
ketched  with  mouldy  corn."  You  will  stand 
better  with  your  judges  if  you  assume  that 
they  are  as  intelligent  as  yourself,  to  put  it 
mildly,  and  also  avoid  the  error  of  many  law- 
yers who,  as  one  of  our  Chief  Justices  said, 
"present  a  case  on  the  theory  that  the  Court  is 
thoroughly  familiar  with  the  facts,  but  pro- 
foundly ignorant  of  the  law." 
1 60 


DELAY  IN  APPELLATE  COURTS 

And  now  we  stand  in  the  presence  of  the  Court 
where  a  critic  from  the  Bar  is  certainly  in  a 
delicate,  perhaps  in  a  dangerous  position.  We 
have  before  us  three  stages — argument,  delibera- 
tion, and  decision,  and  there  is  no  room  for  delay 
by  the  Bar  except  in  the  first  stage.  Against 
this  the  Courts  are  inclined  to  set  their  faces 
sternly.  In  England  and  in  some  of  our  states 
counsel  are  not  hmited,  but  the  tendency  is 
strongly  the  other  way.  In  most  of  the  Federal 
and  State  courts  the  limitation  is  strict,  and 
extensions  are  not  easy  to  obtain.  As  a  result 
counsel  are  constantly  arguing  "to  the  clock  in- 
stead of  to  the  Court,"  as  one  of  my  friends  put 
it,  and  in  cases  where  the  facts  are  complicated, 
and  especially  where  several  lawyers  are  to 
divide  the  time  allowed,  that  sense  of  freedom 
which  a  counsel  must  feel  in  order  to  do  his  case 
justice  is  destroyed  and  he  is  constantly  wonder- 
ing how  far  he  can  go  on  one  point  and  still  have 
time  to  develop  the  others,  or  how  long  he  can 
speak  without  taking  time  from  his  associates. 
i6i 


REFORM  OF  LEGAL  PROCEDURE 

Were  there  no  limit  set  by  rule,  a  court  can 
always  convey  to  counsel  the  impression  that  he 
has  talked  long  enough.  I  have  seen  it  done  by 
very  open  indications  of  weariness,  but  while 
these  are  necessary  in  extreme  cases,  they  are 
rarely  required.  Every  competent  judge  of 
experience  has  learned  how  to  indicate  without 
transgressing  the  laws  of  courtesy  that  an  argu- 
ment should  not  be  continued.  From  the  Court's 
point  of  view  it  is  not  strange  that  it  should  wish 
to  protect  itself  against  prolix  discussion  and 
fooUsh  argument  or  indefinite  reiteration.  The 
time  limit  must  be  retained,  but  a  Uttle  more 
indulgence  in  important  and  complicated  cases 
may  well  be  given,  especially  where  the  counsel 
employed  are  not  in  the  habit  of  wasting  time. 
The  law  must  be  no  respecter  of  persons,  but  it 
may  well  respect  methods,  and  the  cause  of 
justice  ^-ill  not  suffer  if  coimsel  who  abuse  the  in- 
dulgence of  the  Court  find  it  withdrawn,  and  if  on 
the  other  hand  those  who  have  sho^\Ti  that  they 
deserve  the  confidence  of  the  Court  receive  it. 
162 


DELAY  IN  APPELLATE  COURTS 

The  present  practice  should  make  for  con- 
densed statement,  but  it  doubtless  tends  also 
to  increase  the  length  of  the  printed  brief,  and 
perhaps  the  day  is  not  far  distant  when  all 
cases  may  be  argued  in  writing,  though  against 
that  result  should  be  quoted  the  remark  of  Mr. 
Justice  Miller,  one  of  the  ablest  judges  who 
ever  sat  on  the  Supreme  Bench  of  the  United 
States,  to  Mr.  Sidney  Bartlett,  one  of  the  ablest 
lawyers  who  ever  appeared  before  it.  Never 
submit  a  case  on  briefs." 

Indeed  we  could  not  help  regretting  the 
change  if  oral  argiunents  were  abandoned. 
There  is  something  in  the  contact  between 
Court  and  counsel,  in  the  questions  of  the 
Court  and  the  answers  of  the  advocate,  which 
stimulates  the  minds  of  both,  and  compels 
attention  while  it  arouses  the  necessary  interest. 
Oral  argument  to  the  Court  is  one  of  the  greatest 
intellectual  opportunities  which  counsel  have, 
and  were  it  given  up,  much  of  the  romance 
which  attends  the  practice  of  the  law  would  be 
163 


REFORM  OF  LEGAL  PROCEDURE 

lost.  It  is  true  that  most  of  us  apprehend  more 
readily  with  the  eye  than  with  the  ear,  and  that 
we  learn  the  law  by  reading  the  reports.  But 
it  is  also  true  that  one  thinks  often  more  effect- 
ively on  his  feet  when  his  brain  is  full  of  blood, 
and  can  make  a  better  statement  or  give  a  more 
pertinent  illustration  than  occurs  to  him  in  the 
cooler  atmosphere  of  his  study.  It  is  also  true, 
that  when  after  a  lapse  of  months  one  reviews 
an  old  brief,  he  is  often  surprised  to  find  that  it 
is  less  cogent  and  convincing  than  he  thought 
it  when  it  was  written,  and  that  it  does  not 
convey  to  his  own  mind  what  he  thought  it  must 
convey  to  the  mind  of  the  Court.  Still  if  we 
could  be  sure  as  to  when  and  in  what  circmn- 
stances  of  fatigue,  haste,  or  possible  somnolence 
a  brief  is  read,  we  might  be  willing  to  trust  the 
careful  written  statement  of  our  case  rather  than 
the  more  or  less  imperfect  presentation  possible 
in  a  limited  oral  argument.  At  present  both 
seem  necessary. 
One  word  of  practical  advice.  Never  read 
164 


DELAY  IN  APPELLATE   COURTS 

your  brief  to  the  Court,  or  read  extensive  citations 
from  the  authorities.  The  mere  repetition  of  a 
brief  is  not  an  oral  argument,  only  a  tedious  and 
useless  waste  of  the  Court's  time.  Unless  counsel 
can  state  the  case  clearly  and  forcibly  without 
reading,  unless  he  can  add  something  to  the 
written  brief,  his  argument  does  not  help  the 
judges,  and  this  part  of  the  law's  delay  had  best 
be  eHminated. 

We  have  now  reached  the  door  of  the  consul- 
tation room  and  here  we  must  pause.  We 
cannot  penetrate  its  secrets.  Attempts  have 
been  made  by  statute  in  some  states  to  insure 
prompt  decisions,  but  it  is  impossible  to  establish 
a  hard  and  fast  rule,  or  make  judges  or  jurymen 
agree  by  the  clock. 

Mr.  Dooley,  in  one  of  his  inimitable  essays, 
gives  voice  to  an  opinion  which  is  too  commonly 
held  by  the  ignorant  laity: 

"If  I  had  me  job  to  pick  out,"  says  he, 
"I'd  be  a  judge.  I've  looked  over  a'  the 
others  an'  that's  th'  only  wan  that  suits. 
i6s 


REFORM  OF  LEGAL  PROCEDURE 

I    have     the    judicyal    timperament.      I    hate 
wurruk." 

He  traces  a  capital  case  through  all  its  stages 
till  it  has  been  argued  in  the  Court  of  Appeals, 
and  then  describes  the  proceedings  as  follows: 

"Occasionally  a  judge  iv'  th'  coort  iv  appeals 
walkin'  in  his  sleep  meets  another  judge,  an' 
they  discuss  matthers.  'How  arre  yer  gettin'  on 
with  th'  Cyanide  case,  judge?'  'I'm  makin'  fair 
headway,  judge.  I've  read  part  iv  th'  vardict  iv 
th'  coroner's  jury  las'  year,  an'  nex'  month  whim 
th'  fishin'  is  over  I  expect  to  look  into  th'  indict- 
ment. 'Tis  a  puzzlin'  case.  Th'  man  is  not 
guilty.'  'Well,  good-bye,  judge.  I'll  see  ye  in 
a  year  or  two.  Lave  me  know  how  ye 're  gettin' 
on.  Pleasant  dhreams!'"  and  so  they  part.  .  .  , 
"Ye  take  a  Hvely  lawyer  that's  wurruked 
twenty  hours  a  day  suin'  sthreet-railroad  com- 
panies an'  boost  him  onto  a  high  coort  an'  he 
can't  think  out  iv  a  hammock.  Th'  more  exalted 
what  Hogan  calls  'th'  joodicial  station,'  th'  more 
it's  like  a  dormitory." 

i66 


DELAY   IN  APPELLATE   COURTS 

This  is  all  very  amusing,  and  as  untrue  in  its 
essence  as  it  is  funny,  but  there  is  a  vein  of  truth 
in  it  as  there  is  in  every  one  of  Mr.  Dooley's 
essays.  The  late  Judge  John  Lowell  of  the 
Circuit  Court  said  that  he  made  it  a  rule  to 
decide  cases  in  the  order  in  which  they  were 
argued,  and  this  may  be  commended  as  a  salu- 
tary practice.  The  moment  that  a  judge  or 
anyone  else  falls  into  the  habit  of  dealing  with 
the  easy  cases  first,  he  is  apt  to  postpone  the 
hard  ones,  salving  his  conscience  with  the  feel- 
ing that  he  is  diHgently  at  work  and  cannot 
be  blamed  for  deferring  a  very  difficult  case  till 
he  has  more  leisure,  rather  than  delay  perhaps 
more  persons  by  keeping  them  waiting  while  he 
ploughs  through  a  long  record  and  decides  very 
close  questions  of  fact  or  law.  I  am  old  enough 
to  know  however  that  the  longer  such  things  are 
postponed,  the  more  they  grow  to  resemble 
mountains,  and  the  harder  it  is  to  take  them  up 
at  any  given  time.  Mr.  Dooley  helps  us  in  this 
matter  when  he  describes  all  that  he  finds  to  do 
167 


REFORM  OF  LEGAL  PROCEDURE 

in  a  morning  when  he  has  a  serious  job  to  tackle, 
how  he  reads  the  newspaper  backward  and  for- 
ward, advertisements  and  all,  and  how  he  catches 
at  every  excuse  for  postponing  the  hard  work 
that  awaits  him.  There  are  no  harder  worked 
or  more  conscientious  men  than  the  judges  of  our 
appellate  courts,  but  they  are  men,  and  Judge 
Lowell's  rule  would  often  help  them.  The  very 
fact  that  an  important  and  difficult  case  was 
a  dam  behind  which  a  multitude  of  cases  was 
accumulating  would  exercise  a  pressure,  and  by 
giving  one's  whole  time  to  a  case  much  can  be 
accompHshed.  Anthony  Trollope  made  it  a 
rule  to  write  a  certain  number  of  words  every  day, 
and  he  accomplished  it  by  sitting  down  at  a 
given  hour  and  going  at  once  to  work.  A  pen 
in  one's  hand  is  a  great  help  to  progress,  and  the 
late  Judge  Hoar  used  to  say  that  he  considered 
his  opinion  half  written  when  he  took  a  sheet  of 
paper  and  wrote  at  the  top  "Hoar  J."  It  is  the 
beginning  that  is  hard,  and  the  feeling  that  work  is 
to  be  done  tires  most  of  us  more  than  doing  it. 
i68 


DELAY  IN  APPELLATE   COURTS 

If  these  words  of  mine  can  be  tortured 
into  a  suggestion  to  our  judges,  it  is  made 
with  the  greatest  respect,  and  with  a  full  appre- 
ciation of  the  difficulties  which  surround  them. 

Delays  in  the  lower  courts  are  much  less 
excusable,  for  it  is  often  more  important  to 
have  a  decision  than  what  the  decision  is.  If 
wrong,  a  higher  court  can  correct  the  error,  but 
if  no  decision  at  all  is  made,  the  injury  is  irrep- 
arable. It  would  be  better  to  have  a  judge 
decide  many  cases  on  his  impressions  at  the  close 
of  the  argument  than  hold  his  decision,  as  I  have 
known  a  motion  for  a  new  trial  to  be  held,  for 
four  years.  It  is  fatally  easy  to  put  a  band 
roimd  the  papers  and  lay  them  away  for  a  leisure 
time  in  the  indefinite  future.  For  this  delay  it 
is  not  easy  to  suggest  any  remedy,  except  such 
as  is  found  in  the  election  of  strong  men  for 
judicial  positions,  and  the  creation  of  a  pubUc 
sentiment  among  the  members  of  the  Bar  which 
shall  support  them  in  the  fearless  discharge  of 
their  duties. 

169 


REFORM  OF  LEGAL  PROCEDURE 

With  all  due  respect,  however,  I  may  be  per- 
mitted to  suggest  that  the  time  occupied  by  any 
appellate  tribunal  in  reading  its  judgments,  often 
extended  by  reading  several  concurring  or  dis- 
senting opinions,  is  a  pure  waste  of  time.  As  no 
one  knows  in  advance  when  the  decision  in  a 
given  case  will  be  announced,  the  parties  and 
their  counsel  are  rarely  present,  and  the  opinions 
are  often  read  to  an  audience  entirely  without 
interest  in  the  case  decided.  It  is  difficult  to 
see  what  useful  purpose  is  served  by  a  practice 
which  in  most  appellate  courts  has  been  aban- 
doned, but  which  is  still  adhered  to  in  the  highest 
of  all. 

So  much  for  the  delay  which  besets  the  course 
of  legal  proceedings  from  the  commencement  of 
suit  till  its  final  determination  by  the  court  of 
last  resort.  But  its  judgment  is  often  not  final. 
Some  error  of  law  or  procedure  is  held  to  vitiate 
all  that  has  been  done,  and  the  litigant  is  com- 
pelled to  begin  again.  Such  results  are  inevita- 
ble, but  they  are  also  deplorable,  and  a  reversal 
170 


DELAY  IN  APPELLATE  COURTS 

for  anything  that  does  not  go  to  the  merits  of 
the  cause  is  especially  unfortunate.  The  Amer- 
ican Bar  Association  has  suggested  one  remedy 
for  this  difficulty,  and  has  urged  Congress  to  pass 
a  statute  which  contains  the  following  provisions: 

"No  judgment  shall  be  set  aside,  or  reversed, 
or  new  trial  granted,  by  any  court  of  the  United 
States  in  any  case,  civil  or  criminal,  on  the 
ground  of  misdirection  of  the  jury  or  the  improper 
admission  or  rejection  of  evidence,  or  for  error 
as  to  any  matter  of  pleading  or  procedure, 
unless,  in  the  opinion  of  the  court  to  which 
application  is  made,  after  an  examination  of  the 
entire  cause,  it  shall  appear  that  the  error  com- 
plained of  has  injuriously  affected  the  substantial 
rights  of  the  parties." 

This  statute  applies  only  to  the  Federal  Courts, 
but  each  state  can  make  a  similar  law  for  its  own 
courts,  or  in  the  absence  of  statute  courts  may 
properly  decide  that  errors  are  immaterial  and 
therefore  not  ground  for  reversal.  It  is  the  true 
rule,  and  should  be  applied  inflexibly  in  aid  of  the 
171 


REFORM  OF  LEGAL  PROCEDURE 

principle,  "Interest  rei  publicae  ut  sit  finis 
litium."  If  the  decision  below  is  just  it 
should  be  sustained,  and  not  reversed  in  order 
that  immaterial  errors  may  be  corrected  with 
the  risk  that  in  a  new  trial  other  like  errors, 
perhaps  material,  may  be  committed,  and  the 
whole  subject  of  the  litigation  be  consumed  by 
the  expense  of  determining  not  the  rights  of 
the  parties,  but  the  ideally  perfect  method  of 
conducting  a  trial.  Such  a  statute  will  not  only 
prevent  many  needless  new  trials,  but  it  will 
discourage  appeals  on  technical  grounds,  it  will 
reduce  the  expense  of  Htigation  to  clients  and 
the  expense  of  maintaining  courts  to  the  public, 
it  will  reduce  the  congestion  in  the  courts  which 
is  a  constant  cause  of  delay,  and  it  will  increase 
the  confidence  of  the  public  in  the  administration 
of  justice. 

But    it    may   be    said:    "Can  we    trust   the 

appellate  courts  to  decide  whether  an  error  has 

or  has  not  injuriously  affected  the  substantial 

rights  of  the  parties,"  in  other  words,  "Can  we 

172 


DELAY  IN  APPELLATE  COURTS 

trust  our  highest  courts  to  decide  what  is  right 
in  a  given  case?"  We  must  trust  some  one 
to  decide  this  question,  and  if  we  cannot  trust- 
the  highest  Court,  whom  can  we  trust?  Every- 
thing himian  is  f alUble,  and  no  system  can  exclude 
the  possibiUty  of  error,  but  that  measure  of 
practical  justice  which  is  all  that  any  human 
being  can  expect  in  a  mortal  world  is  amply 
secured  by  such  a  rule  as  the  proposed  statute 
prescribes,  and  it  is  infinitely  less  likely  to  result 
in  a  denial  of  justice  than  the  present  practice. 
It  is  a  rule  which  demands  good  judges,  but  these 
are  always  essential  if  justice  is  to  be  done  under 
any  system. 

You  must  have  observed  that  for  many  of 
the  troubles  which  I  have  pointed  out  my  remedy 
has  been  increased  power  in  the  judges,  and  this 
of  course  can  only  be  given  to  an  able,  strong, 
independent  Bench.  How  important  is  this,  and 
how  is  it  to  be  secured?  The  people  of  the 
United  States  plume  themselves  on  their  sound 
practical  common  sense,  but  there  is  no  single 
173 


REFORM  OF  LEGAL  PROCEDURE 

matter  in  which  they  have  so  long  and  so  persis- 
tently displayed  a  lack  of  this  quality  as  in  dealing 
with  their  judges.  Our  whole  political  structure 
rests  upon  the  assumption  that  the  judiciary 
shall  have  power  to  hold  the  balance  between 
the  different  departments  of  the  government, 
shall  protect  the  legislature  against  usurpation 
by  the  executive,  shall  defend  the  executive 
against  encroachment  by  the  legislature,  shall 
maintain  the  right  of  every  citizen  against 
invasion  by  any  other,  and  shall  shield  a  minority 
of  perhaps  only  one  against  oppression  by  the 
majority,  however  large.  It  must  hold  the  scales 
of  justice  even  between  government  and  citizen, 
between  strong  and  weak.  Yet  to  use  the  words 
of  Hamilton: 

"From  the  nature  of  its  functions  it  will 
always  be  the  least  dangerous  to  the  political 
rights  of  the  Constitution  because  it  will  be  least 
in  a  capacity  to  annoy  or  injure  them.  The 
executive  not  only  dispenses  the  honors,  but 
holds  the  sword  of  the  community;  the  legislature 
174 


DELAY  IN  APPELLATE  COURTS 

not  only  commands  the  purse  but  prescribes  the 
rules  by  which  the  duties  and  rights  of  every 
citizen  are  to  be  regulated;  the  judiciary  on  the 
contrary  has  no  influence  over  either  the  sword 
or  the  purse,  no  direction  of  either  the  strength, 
or  of  the  wealth  of  the  society,  and  can  take  no 
active  resolution  whatever.  It  may  truly  be 
said  to  have  neither  force  nor  will,  but  merely 
judgment,  and  must  ultimately  depend  upon  the 
aid  of  the  executive  arm  for  the  efl&cacious 
exercise  even  of  this  faculty." 

A  body  of  men  upon  whom  such  great  respon- 
sibihties  are  laid,  and  who  can  accomplish  the 
results  expected  of  them  only  by  the  effect  which  is 
produced  upon  the  public  mind  by  the  excellence 
of  their  judgments;  who  can  only  declare  what 
is  just  and  in  the  long  run  must  depend  upon 
the  conviction  which  their  declaration  carries 
for  its  influence,  should  be  composed  of  the 
ablest  and  wisest  men  that  the  country  can 
supply.  There  is  nothing  which  is  so  important 
to  the  state  as  a  strong  and  independent  Bench, 
175 


REFORM  OF  LEGAL  PROCEDURE 
there  is  nothing  which  costs  so  much  as  cheap 
courts,  nothing  so  dear  as  injustice. 

The  Courts  sit  to  maintain  and  enforce  the 
law,  —  which  is  the  well-considered  will  of  the 
State  and  the  State  needs  and  can  afford  the 
best  talent  to  support  its  will.  The  large  organ- 
izations, the  great  corporations,  the  men  of 
wealth,  the  most  dangerous  criminals,  command 
the  services  of  the  ablest  lawyers.  The  courts 
should  stand  between  any  unjust  claims  of  such 
persons  and  the  community.  The  judges  should 
be  able  enough  to  recognize  sophistry  and  see 
through  improper  appeals,  they  should  be  learned 
enough  to  know  what  the  law  requires  in  each 
case,  they  should  be  strong  enough  to  meet  great 
advocates  on  equal  terms,  and  to  protect  poorer 
clients  and  weaker  lawyers  against  injustice. 
Strength,  abiUty,  knowledge,  and  character  are 
essential  to  a  good  judge,  and  where  they  are 
lacking  we  have  error,  tediously  protracted 
proceedings,    frequent    new    trials,   delay,   and 

expense   both   to   suitors   and   the   community. 
176 


DELAY  IN  APPELLATE   COURTS 

Where  weak  courts  deal  with  criminals,  crime 
goes  unpunished,  lawlessness  flourishes,  men 
lose  their  respect  for  the  courts  and  resort  to 
lynch  law,  and  civilization  suffers.  It  is  impos- 
sible to  overestimate  the  loss  which  bad  courts 
inflict  on  a  community,  and  there  is  no  better 
test  of  a  people's  position  in  the  scale  of  civiliza- 
tion than  the  character  of  its  judicial  tribunals, 
as  will  become  apparent  to  you  if  you  will  com- 
pare the  methods  by  which  justice  is  administered 
in  different  nations. 

But  how  are  good  judges  to  be  obtained? 
The  public  needs  as  good  lawyers  as  any  private 
interest,  and  can  afford  as  well  to  pay  what  is 
needed  to  obtain  them,  but  it  cannot  afford  not 
to  have  them  or  to  be  content  with  poor  service. 
The  state  comes  into  the  market  as  a  customer, 
and  finds  itself  in  competition  with  other  pur- 
chasers. If  it  needs  land  it  must  pay  the  market 
price,  if  it  needs  food  or  clothes  for  its  soldiers 
it  must  pay  what  others  pay  for  like  quantities 
of  the  same  things.  The  same  inexorable  law 
177 


REFORM  OF  LEGAL  PROCEDURE 

of  supply  and  demand  applies  when  it  seeks  the 
service  of  men.  It  must  pay  an  adequate  price 
or  it  will  not  succeed  in  the  competition  with 
those  who  offer  more.  The  price  is  not  neces- 
sarily all  to  be  paid  in  money.  There  are  many 
men  who  are  attracted  to  public  oflBce  by  the 
honor  attached  to  it  or  by  the  prospect  of  assured 
employment,  and  there  are  others  who  are 
influenced  by  a  sense  of  public  duty  and  are 
willing  to  make  some  patriotic  sacrifice,  but  an 
adequate  salary  is  in  the  long  run  essential. 
Lawyers  are  men,  they  have  wives  and  children 
and  wish  to  give  them  the  advantages  of  travel 
and  the  pleasures  of  society.  A  judge  has  a 
position  to  maintain,  and  the  lawyer  who  is  well 
established  in  practice  and  happy  in  his  home 
and  his  prospects  is  loath  to  take  the  vow  of 
poverty,  to  deny  his  children  what  their  com- 
panions enjoy,  to  accept  a  position  which  carries 
him  sometimes  for  long  periods  away  from 
home  to  live  in  a  poor  hotel  while  he  is  holding 
a  term,  to  find  himself  cut  off  from  the  pleasant 
178 


DELAY  IN  APPELLATE   COURTS 

society  to  which  he  is  accustomed  and  to  a 
certain  extent  isolated  by  his  position  and  the 
necessity  of  guarding  against  unjust  suspicions; 
in  a  word,  to  give  up  a  free,  interesting,  busy, 
prosperous  life  for  one  in  which  he  is  restricted 
on  every  side.  This  is  less  true  of  the  higher 
than  the  lower  judicial  positions,  for  the  honor 
of  the  former  is  so  great  that  men  are  willing 
to  sacrifice  something  to  win  them,  but  even 
here  the  choice  is  restricted  by  the  considerations 
which  I  have  pointed  out.  A  judgeship  should 
be  with  us,  as  it  always  has  been  in  England, 
among  the  prizes  of  the  profession  which  a 
leader  is  glad  to  accept  as  the  crown  of  a  success- 
ful career.  Under  present  conditions  it  is  a 
place  which  a  man  of  independent  means,  or  a 
man  whose  professional  success  has  been  limited 
may  wish  to  take,  but  which  cannot  be  taken  by 
a  successful  lawyer  without  a  sacrifice.  I  speak 
from  recent  experience  in  endeavoring  as  one  of 
a  committee  to  find  men,  who  were  fit  to  fill  and 
willing  to  accept  a  seat  on  the  Bench.  Man 
179 


REFORM  OF  LEGAL  PROCEDURE 

after  man  whom  we  thought  fit  refused,  because 
he  feLt  that  he  must  save  for  wife  and  children, 
and  he  could  not  do  this  on  the  Bench  and  live 
comfortably  without  changing  his  methods. 
Others  dishked  to  give  up  their  freedom,  and 
only  a  few  felt  able,  or  willing  from  a  sense 
of  duty  to  make  the  sacrifice  which  everyone 
felt  that  he  must  make  in  accepting  the 
appointment. 

This  was  where  the  judges  are  appointed  for 
life.  Where  they  are  elected  by  the  people  for 
shorter  or  longer  terms,  the  difficulty  of  securing 
good  judges  is  enormously  increased.  In  the 
first  place  the  people  at  large  cannot  judge  as  to 
certain  elements  of  fitness,  as,  for  example,  the 
candidate's  knowledge  of  the  law.  If  a  man  is  a 
candidate  for  re-election  his  service  during  his 
previous  term  or  terms  may  be  a  guide,  but  not 
so  when  he  is  originally  selected.  Many  quali- 
ties make  a  man  popular  with  the  voters  which 
unfit  him  for  the  Bench,  and  the  chance  of  a 
wise  selection  is  small,  especially  in  communities 
i8o 


DELAY  IN  APPELLATE   COURTS 

where  men  of  different  races  and  perhaps  differ- 
ent religions  are  more  anxious  to  have  these 
represented  on  the  Bench  than  to  secure  the  best 
possible  judges. 

Again  we  find  that  in  New  York,  for  example,  a 
candidate  is  expected  to  contribute  a  year's  salary 
or  a  considerable  part  of  it,  to  the  campaign 
fund  of  the  party  which  supports  him.  There 
must  be  many  men  who  would  make  admirable 
judges,  but  who  would  absolutely  refuse  to  buy 
a  nomination  or  election  in  this  way,  and  many 
others  who  will  not  expose  themselves  to  the 
disagreeable  attacks  that  are  made  during  a 
campaign  upon  all  candidates.  The  best  men 
will  not  seek  judicial  office  on  such  terms.  To 
enter  a  political  contest  for  nomination  or  election, 
and  especially  to  pay  for  judicial  office,  is  an  im- 
possibihty  for  many  men,  and  under  the  elective 
system  men  of  this  class  become  ineligible. 

Again,  the  judge  whose  election  is  approaching 
and  who  dreads  defeat  must  find  it  very  difficult, 
indeed   often    impossible,   to   decide    against  a 
i8i 


REFORM  OF  LEGAL  PROCEDURE 

popular  litigant  or  a  la-v^yer  influential  in  politics, 
or  to  set  aside  a  law  which  the  people  approve. 
Human  nature  is  weak,  and  a  good  judge  must 
be  strong  enough  to  stand  by  his  own  convictions 
of  justice  and  law  against  any  and  all  attacks, 
whether  from  coimsel  in  court  or  pubHc  opinion 
without.  We  need  judges  who  love  justice 
more  than  they  love  their  offices,  and  we  do 
wTong  when  we  expose  them  to  temptations 
which  human  nature  finds  it  hard  to  resist. 
When,  as  now,  it  is  proposed  that  the  people 
may  recall  them  before  their  term  expires,  it  is 
inevitable  that  with  the  axe  suspended  over  their 
judicial  necks  they  should  find  it  much  harder  to 
decide  right,  —  much  easier  to  swim  with  the 
popular  current.  The  umpire  at  a  baseball 
match  has  at  least  one  side  to  support  his  deci- 
sion, but  the  judge  who  holds  a  popular  law 
unconstitutional  or  makes  some  other  unpopular 
decision  may  well  have  no  friends.  The 
Massachusetts  Bill  of  Rights  states  the  true 
rule  in  these  words: 

182 


DELAY  IN  APPELLATE  COURTS 
*'It  is  essential  to  the  preservation  of  the 
rights  of  every  individual,  his  life,  liberty,  prop- 
erty, and  character,  that  there  be  an  impartial 
interpretation  of  the  laws  and  administration  of 
justice.  It  is  the  right  of  every  citizen  to  be 
tried  by  judges  as  free,  impartial,  and  independent 
as  the  lot  of  humanity  will  admit.  It  is  therefore 
not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people  and  of  every  citizen,  that 
the  judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  as  long  as  they  behave  them- 
selves well,  and  that  they  should  have  honorable 
salaries,  ascertained  and  established  by  existing 
laws." 

We  make  the  entrance  to  the  Bench  difficult 
by  compelling  the  candidate  too  often  to  seek 
and  pay  for  election  at  the  hands  of  the  people. 
We  make  his  tenure  uncertain.  We  show  that 
we  do  not  trust  him  by  Umiting  his  powers  in 
every  way,  and  we  pay  him  a  grossly  inadequate 
salary.  We  are  a  business  people;  we  know 
that  in  private  life  we  could  not  get  a  good 
183 


REFORM  OF  LEGAL  PROCEDURE 

foreman  on  these  terms,  and  we  wonder  that 
our  courts  are  choked  and  the  administration  of 
the  law  expensive  and  uncertain.  What  common 
sense! 

A  Kentucky  judge  said  to  the  Bar  Association 
of  that  state  last  year: 

"  Our  jealousy  of  the  judge  is  such  that  we  have 
formulated  a  set  of  hard  and  fast  rules  for  his 
guidance  —  absolute  rules  of  evidence,  strict 
reviews  of  every  act,  word,  or  ruUng  by  the  Court 
of  Appeals.  _JV© -have  devised  special  machinery 
to  eUminate  the  personality  of  the  judge.  At 
the  same  time  we  have  given  increased  rein  to 
the  advocate  as  well  as  to  the  shyster,  till  now 
the  judge  must  daily  'sit  hke  a  knot  in  a  log' 
and  listen  to  speeches  to  the  jury  —  speeches 
that  are  the  disgrace  of  our  civilization  —  and 
daily  watch  practices  which  he  is  powerless  to 
prevent  and  which  are  recognized  by  all  the 
community  as  void  of  all  semblance  of  morality. 
To  make  matters  worse,  we  have  made  our 
judges  —  all  of  them  —  mere  puppets  of  political 
184 


DELAY  IN  APPELLATE   COURTS 

parties,  so  that  it  is  impossible  for  them  or  any 
of  them  to  be  independent  as  I  know  everyone  of 
our  judges  would  wish  to  be." 

Such  a  picture  does  not  make  the  Bench 
attractive. 

Think  for  a  moment  that  we  spend  out  of  a 
bilhon  dollars  appropriated  for  the  annual 
expenses  of  the  nation  seventy-two  per  cent,  for 
war,  past  and  future,  and  then  compare  this 
with  the  beggarly  sum  allowed  for  the  expenses 
of  the  Federal  Courts.  Millions  of  dollars  for 
force  that  we  hope  never  to  use,  and  a  few 
thousands  for  justice  that  we  need  every  day  of 
our  lives!  I  hardly  know  which  costs  us  most, 
the  expensive  battleships  or  the  cheap  courts. 
If  we  doubled  the  salary  of  every  judge  on  the 
Bench  the  cost  would  be  trifling  as  compared 
with  the  cost  of  a  Dreadnought,  yet  the  dangers 
to  which  poor  courts  expose  us  are  far  greater 
and  more  imminent  than  any  from  which  our 
fleet  protects  us.  Yet  we  boast  of  our  common 
sense. 

i8S 


REFORM  OF  LEGAL  PROCEDURE 

We  have  been  far  more  fortunate  than  we 
deserve  in  securing  excellent  judges,  and  what  I 
say  is  not  intended  to  reflect  in  any  way  upon 
their  ability  or  their  character,  but  to  point  out 
that  we  do  not  treat  them  fairly.  Our  system  is 
wrong,  and  we  cannot  long  expect  that  it  will 
yield  good  results.  Nay,  it  is  certain  that  it  will 
yield  steadily  worse  results  if  it  is  continued. 

The  full  argument  against  an  elective  judiciary 
has  been  presented  so  often  that  I  will  not  repeat 
it,  nor  have  I  time  to  say  more  than  I  have  on 
the  subject.  The  difference  between  a  proper 
method  of  securing  judges  and  the  method  which 
we  employ  is  shown  by  a  single  fact.  In  England 
the  ablest,  strongest,  and  most  experienced 
lawyers  are  placed  on  the  Bench,  and  the  result 
is  that  EngUsh  justice  is  proverbial.  In  many 
parts  of  our  country  yoimg  men  with  Httle 
experience  obtain  judgeships  as  a  step  towards 
practice,  intending  to  resign  and  commence  prac- 
tice with  the  prestige  which  is  conferred  by 
the  much  abused  title  "judge."  In  England 
i86 


DELAY  IN  APPELLATE   COURTS 

the  fittest,  and  in  the  communities  of  which  I 
speak  perhaps  the  imfittest,  administer  justice. 
"By  their  fruits  ye  shall  know  them." 

The  profession  must  combine  to  uphold  the 
power  and  dignity  of  the  Bench,  and  to  make 
judicial  positions  attractive  to  the  ablest  lawyers 
in  every  jurisdiction.  Unless  this  is  done,  the 
grave  defects  in  our  system  will  remain  imchanged. 

I  have  discussed  with  you  now  the  causes  of 
delay  and  have  suggested  some  remedies.  Let 
me  now  deal  with  something  which  is  not  a 
remedy.  It  is  constantly  urged  that  in  order  to 
overcome  the  delay  in  the  courts  we  should  have 
more  judges  and  so  more  courts,,-— My  remedy  is 
better  courts  with  greater  pow^y.  The  usual 
remedy  is  more  courts  with  less  powers.  Let 
me  call  your  attention  to  some  figures  taken 
for  convenience  from  my  own  state,  but  which 
illustrate  conditions  in  many  states.  In  1874,  we 
had  in  Massachusetts  ten  judges  of  the  Superior 
Court.  We  have  now  twenty-five.  The  popu- 
lation has  not  quite  doubled.  If  we  compare 
187 


REFORM  OF  LEGAL  PROCEDURE 

Massachusetts  with  England,  we  find  that  in  1900 
Massachusetts  had   a  population   of    2,800,000 
people;   that  in  1901  England  had  a  population 
of  32,527,000,  between  11  and  12  times  as  great. 
In  the  higher  courts  of  England  there  are  34 
judges.    In  the  higher  courts  of  Massachusetts 
there  are   51   judges.     If  we  take  the  County- 
Courts  in  England  and  the  corresponding  courts 
in  Massachusetts  we  find  that  England  has  in  all 
93  judges,  and  Massachusetts  has  144  judges. 
Dealing  only  with  the  higher  courts,  England 
has  a  judge  to  each  956,700  people;   Massachu- 
setts has  a  judge  for  every  56,968.     If  we  take  all 
the  judges,  England  has  a  judge  for  each  349,762, 
Massachusetts  a  judge  for  each  19,520  persons. 
To  put  it  in  another  way,  if  England  adopted 
the    Massachusetts     ratio,   and    had  as    many- 
judges  as  there  are  in  Massachusetts,  England 
would   have    570  higher    court  judges,  instead 
of  34,  nearly  twenty  times  as  many,  and  she 
would  have  1666  judges  in  all  instead  of  93.    This 
comparison  is  to  a  very  sHght  exteht  misleading, 
188 


DELAY  IN  APPELLATE   COURTS 

because  whenever  you  have  a  separate  judicial 
system,  you  must  have  appellate  courts  of  several 
judges  no  matter  what  the  population.  But  the 
EngUsh  Appellate  Court  sits  with  fewer  judges 
than  the  Supreme  Court  of  Massachusetts. 

Some  years  ago  I  was  told  that  there  were  fewer 
juries  sitting  in  London  than  in  Boston.  There 
were,  as  I  remember  it,  in  October  three  special 
juries  and  three  ordinary  juries,  in  all  six,  sitting 
in  London  with  its  enormous  population.  We 
had  in  Boston  some  eight  or  ten  juries  sitting  at 
the  same  time,  counting  the  juries  in  the  Federal 
courts.  If  you  go  into  our  trial  courts,  you  find 
on  the  trial  list  for  the  day  an  enormous  number 
of  cases.  If  you  go  into  an  English  court,  you 
find  three,  but  those  three  are  to  be  tried  on  that 
day,  and,  as  a  rvile,  they  are  tried.  Yet,  with 
this  smaller  force,  fewer  juries  and  fewer  judges, 
they  do  the  work  of  32,000,000  of  people,  which 
shows  that  the  character  and  not  the  number  of 
the  courts  is  the  essential  factor. 

In  Chicago  a  judge  disposes  of  nearly  1000 
189 


REFORM  OF  LEGAL  PROCEDURE 

cases  a  year;  in  England  each  judge  disposes  of 
more  than  3500  cases  a  year,  yet  EngHsh  justice 
is  satisfactory.  In  1902,  out  of  more  than  46,000 
cases  disposed  of  by  the  coimty  courts,  there  were 
only  140  appeals.  Out  of  689  cases  heard  on 
appeal  in  1902,  106  were  disposed  of  in  two 
weeks  after  the  hearing;  loi  in  four  weeks.  The 
average  delay  was  less  than  six  months.  Many 
were  decided  on  the  spot.  Out  of  555  cases 
which  were  heard  on  appeal  in  1904,  the  judgment 
was  reserved  in  only  50. 

In  Montana,  \vith  its  240,000  people,  the 
Supreme  Court  was  lately  two  years  in  arrears. 
In  England  550  cases  were  heard  on  appeal  in 
1904,  and  of  these  500  were  decided  before  the 
counsel  left  the  court  room.  It  is  clear  that  we 
do  not  need  more  judges,  and  it  is  worth  while 
to  remember,  when  this  remedy  is  suggested,  that 
more  judges  do  not  mean  less  delay.  As  in 
other  things  quality  not  quantity  tells.  --^ 

It  is  also  worth  while  to  bear  in  mind  that 
increasing  the  number  of  judges  of  the  Appellate 
190 


DELAY  IN  APPELLATE  COURTS 

Court  does  not  always  conduce  to  better  results. 
It  takes  longer  for  seven  or  nine  men  to  agree  on 
a  proposition  of  law  than  it  does  for  three,  and 
in  reaching  the  result,  each  takes  less  responsi- 
bility than  if  he  was  one  of  three.  The  larger  the 
tribunal,  the  longer  time  it  takes  to  reach  a 
decision,  the  greater  the  chance  of  disagreement 
without  improving  the  result.  We  do  not  want 
more  men  upon  the  Bench.  We  want  a  better 
system,  and  we  want  the  best  men. 

It  is  also  suggested  that  imanimity  should  no 
longer  be  required  from  a  jury,  and  that  a 
majority  should  be  allowed  to  render  the  verdict. 
This  suggestion  is  founded  on  an  exaggerated 
impression  as  to  the  frequency  of  disagreements. 
In  the  year  ending  June  30, 1909,  out  of  893  cases 
tried  in  Boston  the  jury  agreed  in  all  but  31, 
of  which  30  were  in  tort  cases.  Unanimity 
insures  consideration.  It  compels  the  jury  to 
listen  and  gives  the  wisest  man  a  chance  to  make 
himself  heard  which  he  might  not  otherwise  have. 
It  also  gives  an  obstinate  fool  an  equal  chance, 
191 


REFORM  OF  LEGAL  PROCEDURE 

and  if  disagreements  were  frequent  the  change 
might  be  necessary.  As  it  is,  the  advantages 
secured  by  the  requirement  outweigh  the  disad- 
vantages. There  may  be  a  few  less  verdicts,  but 
as  a  whole  the  verdicts  are  better.  Very  little 
of  the  law's  delay  is  chargeable  to  jurymen,  who 
agree  oftener  than  the  judges  of  appellate 
courts. 


192 


CRIMINAL  PROCEDURE.     THE  LAWYER'S 
RESPONSIBILITIES   FOR   LEGISLATION 

^  I  ^HERE  is  no  part  of  its  work  in  which 
-*-  the  law  fails  so  absolutely  and  so  ludi- 
crously as  in  the  conviction  and  punishment  of 
criminals,  and  its  failures  in  this  respect  en- 
danger the  whole  foundation  of  society.  As  our 
population  increases  and  becomes  more  varied 
in  character  crime  appears  to  increase,  and  it 
becomes  more  diflficult  to  discover  criminals  of 
the  lower  type.  An  embezzler  who  has  moved 
in  high  financial  circles,  or  an  identified  mur- 
derer like  Dr.  Crippen,  will  indeed  find  it  more 
difficult  to  escape,  but  where  a  crime  is  com- 
mitted by  some  person  unknown,  where  the 
motive  is  robbery  and  there  is  no  antecedent 
relation  between  the  criminal  and  his  victim, 
detection  is  very  difficult.  Burglars  and  villains 
193 


REFORM  OF  LEGAL  PROCEDURE 

of  like  kinds  are  no  longer  restrained  by  national 
boundaries.  The  men  who  robbed  a  jeweller's 
shop  in  Boston  some  years  ago  were  found  last 
week  in  an  Austrian  prison.  Misgovernment 
in  Russia  supplied  the  criminals  who  some  years 
ago  robbed  and  murdered  a  cashier  in  a  crowded 
London  neighborhood,  and  a  year  ago  men  of 
the  same  nationality  committed  the  identical 
crime  in  Massachusetts.  The  complicity  of  the 
police  with  criminals  of  certain  classes  in  at 
least  some  of  our  large  cities,  the  difficulty  of 
proving  certain  crimes  Uke  bribery,  the  weak 
sentimentality  of  the  community,  which,  when 
a  horrible  crime  is  committed,  shrieks  for  the 
detection  and  punishment  of  the  perpetrator, 
and  when  he  is  found  seeks  to  find  excuses  for 
his  act  and  reasons  for  his  pardon,  all  weaken 
the  restraints  which  the  law  is  intended  to  im- 
pose upon  the  depraved  members  of  society. 
To  all  these  difiiculties  our  courts,  by  their  ad- 
ministration of  the  law,  and  our  whole  system 
of  criminal  procedure  add  as  many  more. 
194 


LAWYER'S  RESPONSIBILITIES 

The  figures  are  startling.  Judge  Holt  of 
New  York,  in  an  address  last  June,  estimated  that 
there  were  100,000  men  who  had  taken  part  in 
lynchings,  and  over  150,000  who  had  participated 
in  strike  riots  resulting  in  homicide  and  injury  to 
persons  and  property,  who  had  gone  unpunished. 
The  Chicago  "  Tribune ''  gives  figures  which  show 
that  from  1887  to  igo8,  inclusive,  the  number 
of  homicides  committed  in  the  United  States 
increased  from  1266  to  nearly  9000.  In  fifteen 
years  the  total  number  was  133,192,  while  during 
the  four  years  of  our  Civil  War  the  whole  number 
of  men  on  the  Union  side  who  were  killed  or  died 
of  their  wounds  was  110,070.  In  Louisville, 
Kentucky,  during  the  year  ending  August  ist 
last,  forty-seven  homicides  were  committed  and 
there  was  not  one  legal  execution,  while  during 
the  year  1909  in  the  city  of  London  with  its 
enormous  population  there  were  only  nineteen 
cases  of  murder.  Of  these  murderers  five 
committed  suicide,  four  were  convicted  and 
executed,  four  were  found  to  be  insane,  one 
195 


REFORM  OF  LEGAL  PROCEDURE 

died  while  waiting  trial,  and  one  killed  himself 
in  jail. 

President  Andrew  D.  White  says  that  in  our 
whole  country  during  the  same  year  there 
were  only  seventy  convictions  in  capital  cases, 
and  lays  this  result  "to  the  chicanery,  pettifog- 
gery, and  folly  in  the  defence  of  criminals." 
"The  murder  rate  in  the  United  States  is  from 
ten  to  twenty  times  greater  than  the  murder 
rate  of  the  British  Empire  and  other  northwestern 
European  countries." 

The  New  Bedford  "Standard"  quotes  Dr. 
White's  statement  and  adds: 

"Dr.  White  speaks  none  too  strongly.  That 
attitude  toward  crime  which  makes  of  the 
criminal  nothing  more  than  an  "unfortunate" 
is  responsible  for  very  much  of  the  criminality  of 
to-day.  Under  its  influence  a  young  tough  who 
sets  fire  to  a  dwelUng  house  is  now  enumerated 
as  a  "deUnquent,"  a  word  selected  for  fear  that 
any  harsher  term  would  hurt  his  feelings.  When 
he  gets  a  Uttle  older,  and  repeats  his  act  of 
196 


LAWYER'S  RESPONSIBILITIES 

arson,  immediately  uprises  a  phalanx  of  the 
soft-hearted  to  proclaim  him  "a  victim  of 
society's  neglect,"  and  he  very  Ukely  escapes 
any  serious  punishment  because  the  prosecuting 
officer  is  wilhng  to  accept  an  aUenist's  assurance 
that  he  is  a  "pyro-maniac."  If  anybody  suggests 
at  any  stage  of  his  career  that  he  has  some 
responsibility  of  his  own,  a  chorus  of  strident 
voices  joins  in  the  chant  that  our  weaker  breth- 
ren should  be  the  object  of  our  considerate  pity." 
The  object  of  criminal  law  is  the  detection  and 
punishment  of  crime,  and  its  strict  enforcement 
is  necessary,  not  only  to  protect  the  community 
against  the  criminals,  but  also  against  itself. 
When  a  crime  is  committed  the  feeling  that 
somebody  should  be  punished  is  instantly  felt 
by  all  within  the  neighborhood  affected.  It  is  a 
feeling  compounded  of  j-evenge,  fear,  and  a 
sense  of  justice,  and  is  most  intense  at  the  first 
news  of  the  crime.  If  the  neighborhood  feels 
that  the  law  will  punish  surely  and  promptly, 
it  will  let  the  law  take  its  course.  If  it  feels 
197 


REFORM  OF  LEGAL  PROCEDURE 

that  the  law  will  let  the  guilty  man  escape,  it  is 
prone  to  take  the  law  into  its  own  hands,  and 
punish  the  person  whom  it  suspects,  with  or 
without  suflficient  evidence  of  his  guilt. 

The  contrast  between  the  feeUng  of  the  com- 
munity outside  and  the  attitude  of  juries  within 
the  courts  is  thus  stated  in  the  Chicago 
"Advance"  : 

"But  the  general  public  cannot  be  persuaded 
that  making  murder  easy  is  good  for  a  community. 
During  the  editor's  recent  visit  to  the  South  he 
was  surprised  to  find  how  much  the  public  is 
disturbed  by  the  failure  to  punish  murderers. 
In  Birmingham  it  was  said  that  murderers 
slipped  through  the  courts  with  ease.  A  jury 
had  just  cleared  a  man  for  killing  the  proprietor 
of  the  hotel  at  which  the  editor  stopped.  It 
seemed  a  wanton  crime,  but  the  jury  took  an 
easy  view  of  the  matter.  In  Florida  there  was 
similar  feeling.  Men  killed  their  fellow-men, 
and  between  juries,  shrewd  lawyers,  and  the  law's 
loopholes  and  delays,  they  were  out  in  the  open 
198 


LAWYER'S  RESPONSIBILITIES 

again  as  if  nothing  much  had  happened.  About 
the  only  Une  drawn  with  firmness  was  on  color. 
On  the  same  day  that  it  was  made  so  trifling 
a  matter  in  Nashville  for  a  colonel  to  assassinate 
a  former  United  States  senator,  the  citizens  of 
Meridian,  Miss.,  lynched,  shot,  hanged,  and 
burnt  a  negro  for  killing  a  white  man.  When  a 
negro  kills  a  man  it  is  a  fiendish  crime,  but  when 
a  colonel  kills  a  distinguished  citizen  it  is  an 
affair  between  gentlemen,  and,  according  to  the 
Tennessee  governor's  view  of  the  matter,  it  is  a 
piece  of  impudence  for  the  courts,  lower  or  higher, 
to  try  to  make  it  embarrassing  to  the  chief 
actor  in  the  tragedy." 

Well  does  President  Eliot  say: 

"The  defenses  of  society  against  criminals 
have  broken  down.  The  impunity  with  which 
crimes  of  violence  are  committed  is  a  disgrace  to 
the  country." 

The  inevitable  result  is  lynch  law  with  all  its 
disastrous  effects  on  society,  the  killing  of  inno- 
cent persons  without  trial,  the  inhuman  methods 
199 


REFORM  OF  LEGAL  PROCEDURE 

often  employed,  the  brutalizing  effect  on  per- 
petrators and  spectators,  and  the  destruction 
of  all  real  respect  for  the  law  which  is  the  founda- 
tion of  civilized  society.  All  these  consequences 
flow  directly  from  the  lax  administration  of 
criminal  law,  and  where  courts  cannot  protect 
the  innocent  and  punish  the  guilty,  private  war 
and  social  disorganization  are  near. 

This  is  not  an  exaggerated  picture.  You  have 
only  to  think  of  the  brutal  lynchings  in  the  South 
and  North,  of  the  night  riders  in  Kentucky  where 
neighbor  killed  neighbor,  where  men  burned  each 
others'  houses,  and  visited  on  each  other  every 
kind  of  outrage  because  they  differed  as  to  the 
terms  upon  which,  or  the  customers  to  which, 
they  should  sell  their  tobacco;  the  labor  war  in 
Colorado,  and  Hke  illustrations  in  different 
parts  of  the  country  to  see  that  I  speak  well 
within  bounds.  "Sooner  or  later,"  as  a  Southern 
writer  says,  *'the  community  which  tolerates 
mob  law  will  feel  the  violence  of  some  new  form 
of  lawlessness." 

200 


LAWYER'S   RESPONSIBILITIES 

There  is  no  real  civilization,  and  as  Secretary 
Dickinson  said:  "There  can  be  no  general  and 
steady  economic  development  where  there  is  a 
general  non-enforcement  of  law,"  and  the 
inevitable  result  may  be  gathered  from  this 
statement  made  three  days  after  the  Atlanta 
riot  in  1906  by  Charles  T.  Hopkins,  a  member  of 
the  Chamber  of  Commerce,  and  a  prominent 
Atlanta  business  man: 

"Saturday  evening  at  eight  o'clock,  the  credit 
of  Atlanta  was  good  for  any  number  of  millions 
of  dollars  in  New  York  or  Boston,  or  any  financial 
center;  to-day  we  couldn't  borrow  fifty  cents.  The 
reputation  we  have  been  building  up  so  arduously 
for  years  has  been  swept  away  in  two  short 
hours,  not  by  men  who  have  made  and  make 
Atlanta,  not  by  men  who  represent  the  character 
and  strength  of  our  city,  but  by  hoodlums, 
understrappers,  and  white  criminals." 

Yet  how  completely  the  community  accepts 
lawless  methods,  unconscious  of  the  danger,  may 
be  gathered  from  the  following: 
201 


REFORM  OF  LEGAL  PROCEDURE 

A  certain  newspaper  correspondent  ventured 
to  describe  a  recent  Mississippi  mob  as  composed 
of  ruflQans.  Whereupon  Tax  Assessor  Miller  of 
Concordia  Parish,  La.,  which  is  just  across  the 
river  from  the  scene  of  the  lynching,  sharply- 
rebuked  him  in  the  following  marvelous  letter: 

"The  lynching  of  Elmo  Curl  at  Mastodon, 
Miss.,  last  night,  was  a  most  orderly  affair,  con- 
ducted by  the  bankers,  lawyers,  farmers,  and 
merchants  of  that  county.  The  best  people  of 
the  county,  as  good  as  there  are  anywhere,  simply 
met  there  and  hanged  Curl  without  a  sign  of 
rowdyism.  There  was  no  drinking,  no  shooting, 
no  yelling,  and  not  even  any  loud  talking.  All 
of  the  best  people  of  that  section  took  part,  and 
I  have  never  seen  a  more  orderly  assemblage 
anywhere." 
'  ""  -  To  accomplish  its  purpose,  criminal  procedure 
should  be  simple,  prompt,  and  effectual.  The 
guilty  should  feel  that  the  arm  of  the  law  is  sure 
and  strong.  To-day  the  law  as  administered 
throws  aroimd  the  criminal  a  protecting  wall 
202 


LAWYER'S  RESPONSIBILITIES 

which  may  have  been  necessary'  when  the  power  of 
the  English  crown  pressed  despotically  upon  the 
subject,  but  which  is  wholly  unnecessary  to-day. 
It  is  the  community  that  now  needs  protection 
against  the  criminal,  not  the  innocent  man  who 
must  be  saved  from  unjust  persecution.  To-day 
it  is  said  with  a  certain  bitter  truth  that  the  only 
man  whose  life  is  safe  is  he  who  has  been  con- 
victed of  murder. 

What  are  the  difficulties?  The  detection  and 
arrest  of  the  criminal  are  for  the  police,  and  with 
the  diflSculties  which  beset  these  the  courts  have 
little  to  do.  We  will  assume  that  the  accused 
has  been  caught  and  the  evidence  laid  before  the 
grand  jury.  Their  first  step  is  to  find  an  indict- 
ment, and  to  this  the  defendant  is  required  to 
plead. 

Now  the  whole  object  of  an  indictment  is  to 
inform  the  court,  the  jury,  and  the  prisoner  of 
what  the  charge  against  the  prisoner  is.  As  a 
rule  no  one  knows  so  well  as  the  accused  e.xactly 
what  he  has  done,  and  what  the  indictment 
203 


REFORM  OF  LEGAL  PROCEDURE 

means.  There  is  no  reason  why  the  indictment 
should  not  state  the  charge  in  the  simplest  and 
most  direct  language,  as  for  example,  why  an 
indictment  for  miurder  should  not  be  in  as  few 
words  as  the  following: 

"The  grand  jurors  charge  that  A.  on  the  ist 
day  of  March  at  Boston  in  the  County  of  Suffolk 
did  commit  murder  by  killing  B." 

A  form  substantially  like  this  is  now  used  in 
England  and  her  colonies,  and  there  is  no  crime 
which  cannot  be  charged  with  equal  brevity. 
Such  an  indictment  informs  the  accused  of  exactly 
the  charge  against  him,  and  accomplishes  every 
purpose  of  an  indictment.  If  it  is  insuflScient 
and  he  wants  further  information  in  any  case, 
he  can  be  given  the  right  to  move  for  specifica- 
tions, and  in  a  proper  case  the  Court  would 
grant  them,  or  the  prosecution  should  be  allowed 
to  amend,  but  whenever  the  jury  is  impanelled 
all  questions  as  to  the  nature  of  the  charge  should 
be  regarded  as  finally  settled. 

Under  the  practice  which  now  prevails  almost 
204 


LAWYER'S  RESPONSIBILITIES 

-£Yerywhere  in  this  country,  the  indictment  is 
used  as  a  trap  for  the  prosecution  and  a  bul- 
wark for  the  defence.  The  ingenuity  of  the 
State's  attorney  is  taxed  to  the  utmost  in  the 
effort  to  be  sure  that  his  indictment  complies 
with  every  technicality,  while  the  defendant's 
counsel  exerts  every  faculty  to  find  a  flaw  in 
his  opponent's  statement,  so  that  instead  of  try- 
ing the  guilt  or  innocence  of  the  prisoner,  the 
trial  too  frequently  is  reduced  to  a  question  as 
to  the  necessity  of  a  few  absurd  words  in  an 
indictment.  The  so-called  "flaw  in  the  indict- 
ment" is  uniformly  the  resort  of  a  convicted 
criminal.  If  the  trial  ends  in  an  acquittal,  either 
by  order  of  the  Court  or  verdict  of  the  jury, 
the  prosecution  cannot  appeal,  since  the  defend- 
ant cannot  twice  be  placed  in  jeopardy.  It  is 
only  after  a  trial  in  which  all  the  evidence  has 
been  sifted,  and  the  question  of  guilt  or  inno- 
cence thoroughly  argued,  a  trial  in  which  the 
defendant  has  known  exactly  what  he  was 
charged  with,  and  where  the  verdict  has  been 
205 


REFORM  OF  LEGAL  PROCEDURE 

so  clearly  right  that  either  the  defendant's 
counsel  has  not  asked  the  trial  court  to  set  it 
aside,  or  the  motion  has  been  made  and  denied, 
that  the  Appellate  Court  is  asked  to  reverse 
the  judgment,  not  because  the  defendant  is  not 
guilty,  and  not  because  he  has  not  been  fairly 
tried,  but  because  an  indictment  sufficient  to 
inform  everybody  of  the  charge  has  or  has  not 
contained  a  few  idle  words.  Too  often,  though 
no  one  has  been  prejudiced  by  the  omission, 
the  Court  lets  the  guilty  rascal  go,  not  because 
justice  requires  it,  but  for  no  better  reason  than 
to  preserve  a  particular  fashion  of  speech. 

Do  you  want  examples?  Let  me  give  you 
some  from  American  courts  within  a  few  years. 
One  man  was  con\dcted  of  murder  in  the  first 
degree,  and  the  verdict  was  set  aside  because 
the  foreman  spelled  "first"  "fust."  In  another 
case  a  convicted  murderer  was  given  a  new  trial 
because  "breast"  was  spelled  in  the  indictment 
without  the  "a."  Another  murderer  was  given 
a  new  trial,  because,  though  the  indictment  al- 
206 


LAWYER'S  RESPONSIBILITIES 

leged  that  he  stabbed  a  man  who  did  "instantly 
die,"  the  words  "then  and  there"  were  not  in- 
serted before  "instantly,"  as  if  he  could  have 
died  instantly  without  dying  "then  and  there," 
or  as  if  it  made  any  difference  when  or  where  he 
died  if  he  was  killed  by  the  accused.  Again,  an 
indictment  for  rape  was  held  defective  because 
it  concluded  "against  peace  and  dignity  of  the 
State"  instead  of  "against  the  peace  and  dignity 
of  the  State,"  and  a  con\action  of  murder  was 
set  aside  because  in  the  name  of  the  murdered 
man,  Patrick  Fitz-Patrick,  the  secgjid-^patrick" 
was  spelled  with  a  snial 

Verdicts  have  been  set  aside  because  the  record 
did  not  show  that  the  defendant  pleaded  not 
guilty,  and  again  because  it  did  not  show  that 
he  was  present  at  the  trial.  In  the  first  case  he 
either  pleaded  guilty,  not  guilty,  or  nolo  contetidere, 
or  else  stood  silent,  in  which  case  the  Court 
would  have  entered  a  plea  of  "not  guilty,"  and 
he  had  been  tried  and  convicted,  so  that  what- 
ever his  plea,  it  had  become  of  no  possible  conse- 
207 


REFORM  OF  LEGAL'  PROCEDURE 

quence.  In  the  second,  if  he  had  not  been  present 
at  the  trial  his  counsel  might  have  been  trusted 
to  make  the  point,  and  the  record  would  have 
shown  his  absence.  In  both  cases  a  sUght  respect 
for  the  rule  "Omnia  praesumuntur  rite  acta" 
would  have  saved  the  profession  the  mortifica- 
tion of  admitting  that  we  have  courts  capable 
of  making  such  absurd  decisions  in  favor  of 
convicted  murderers. 

I  cannot  refrain  from  giving  one  more  instance 
of  fatuity  where  an  indictment  charged  that  B. 
killed  D.  "by  firing  a  Colt's  revolver  loaded  with 
gunpowder  and  leaden  balls,  which  he,  B.,  then 
and  there  had  and  held  in  his  hands."  The 
defendant  was  convicted,  but  the  Court  set  the 
conviction  aside  because  the  indictment  did  not 
allege  that  the  pistol  was  fired  at  D.  "It  may 
have  been  fired  into  the  air,  or  at  a  flock  of  birds. 
Nor  can  we  see  that  D.  was  hit;  he  may  have 
been  a  feeble  man  who  died  of  fright  at  the 
discharge  of  the  pistol  for  anything  the  indict- 
ment contains!"  If  either  of  these  things  had 
208 


LAWYER'S  RESPONSIBILITIES 

been  true,  of  course  the  defendant  would  never 
have  been  convicted,  and  "the  law  is  the  per- 
fection of  human  reason."  Can  you  wonder  that 
it  falls  into  disrepute  when  it  is  so  interpreted  ? 
How  often  do  the  most  important  prosecutions 
fail  from  such  absurdities.  A  flaw  in  the  indict- 
ment set  free  the  convicted  mayor  of  Minneapolis 
after  a  full  and  fair  trial.  Similar  defences 
proved  fatal  to  most  of  the  important  convic- 
tions won  by  Governor  Folk  at  St.  Louis,  when 
men  who  had  betrayed  their  fellow  citizens  by 
selling  franchises  and  contracts,  bribers  and 
bribed  alike,  were  relieved  from  the  consequences 
of  their  crimes  by  the  highest  court  of  Missouri. 
One  of  the  most  conspicuous  among  these  rascals 
said,  after  he  had  been  sentenced  to  a  term  in 
the  penitentiary:  "The  Courts  will  reverse  all 
Folk's  cases,  and  when  Folk's  term  expires  we 
will  get  off  and  the  fellows  that  have  peached 
will  go  to  jail!"  He  knew  whereof  he  spoke. 
How  long  has  it  taken  in  San  Francisco  to  get 
Abe  Ruef,  a  conspicuous  rascal  who  had  pleaded 
209 


REFORM  OF  LEGAL  PROCEDURE 

guilty,  into  the  prison  cell  which  he  should  long 
ago  have  occupied?  And  when  in  the  Ught  of 
plain  common  sense  one  asks  why  these  decisions 
are  made,  it  is  impossible  to  imagine  a  reason 
at  once  honest  and  sensible.  It  we  cannot  alter 
the  law  so  as  to  make  such  mockeries  of  justice 
impossible,  our  profession  deserves  the  contempt 
of  the  community.  One  remedy  for  this  diffi- 
culty is  to  be  found  in  statutes  prescribing 
simple  forms  of  indictment,  and  giving  the  Court 
power  to  afford  the  defendant  such  information 
as  is  necessary  to  relieve  any  doubts  as  to  the 
xrime  charged,  if  such  doubt  exists. 

Let  us  take  another  step,  and  assuming  that 
the  indictment  is  correct,  proceed  to  the  trial. 
In  the  first  place  a  jury  must  be  impanelled,  and 
the  Court  too  often  finds  the  simple  task  of 
selecting  twelve  impartial  men  almost  beyond 
its  powers.  In  New  York,  when  Thaw  was 
tried,  in  Tennessee  when  the  murderers  of 
Senator  Carmack  were  set  at  the  bar,  weeks 
elapsed   in    trying    jurymen.     Ninety-one   days 

2IO 


LAWYER'S  RESPONSIBILITIES 

were  consumed  in  the  selection  of  a  jury  to  try 
Calhoun  in  San  Francisco.  To  get  a  jury  who 
should  try  one  Shea,  9425  jurymen  were  sum- 
moned, of  whom  4821  were  examined,  the  cost 
in  jury  fees  alone  being  more  than  $13,000. 
In  England  and  in  most  New  England  states 
this  difl&culty  does  not  arise,  and  the  impanelling 
of  a  jury  is  accompUshed  easily.  At  the  trial 
of  Dr.  Crippen  the  jury  was  selected  in  eight 
minutes,  and  only  three  jurors  were  challenged, 
yet  the  Crippen  case,  the  evidence,  the  flight  and 
capture  of  the  accused  had  occupied  columns  in 
every  daily  newspaper  for  weeks.  One  English 
judge  stated  that  in  fourteen  years  he  had  known 
only  one  challenge. 

Where  a  defendant  is  allowed  to  challenge  any- 
one who  has  got  an  impression  from  reading  the 
newspaper  and  has  moreover  many  peremptory 
challenges,  the  process  is  a  travesty  of  justice. 
This  is  a  country  where  the  newspapers  live 
largely  by  printing  full  narratives  of  crime  with 
every  suggestion  bearing  on  the  guilt  or  inno- 
211 


REFORM  OF  LEGAL  PROCEDURE 

cence  of  each  suspected  person,  that  the  ingenu- 
ity of  a  reporter  or  editor  can  supply.  Day 
after  day,  suspicions,  theories,  and  arguments 
are  spread  before  the  public,  and  as  in  most 
communities  it  would  be  very  difficult  to  find 
an  intelligent  man  who  does  not  read  some 
newspaper,  it  is  naturally  difficult  to  find  a 
juryman  who  has  not  some  impression.  We  all 
read  such  accounts  more  or  less  carelessly,  but 
our  opinions,  if  any,  are  not  lasting,  and  are 
easily  corrected  by  evidence.  The  counsel  who 
wishes  to  keep  an  intelligent  man  off  the  jury, 
the  juror  who  is  glad  to  be  excused  from  the 
disagreeable  task  of  trying  a  man  for  his  life  or 
for  some  other  felony,  unite  to  magnify  the 
reasons  for  not  serving,  and  man  after  man  who 
could  sit  with  perfect  propriety  and  render  a  just 
verdict  is  excused  from  service.  The  result  can- 
not fail  to  be  a  poor  jury  and  generally  an  un- 
satisfactory result.  Why  should  we  continue  to 
countenance  a  system,  which  aims  to  get  a  weak 
jury,  and  make  the  enforcement  of  the  law  more 

212 


LAWYER'S  RESPONSIBILITIES 

difficult.  Peremptory  challenges  should  be  few, 
and  judges  should  keep  any  man  on  the  jury 
who  is  otherwise  quahfied  and  who  has  not  a 
decided  opinion  as  to  the  guilt  or  innocence  of 
the  accused.  We  should  use  some  of  our  boasted 
common  sense,  and  no  longer  tolerate  the  ab- 
surdities which  make  our  criminal  trials  so 
often  mere  mockeries. 

Something  might  also  be  said  in  favor  of  pre- 
venting the  press  from  trying  all  suspected  persons 
in  their  columns,  as  is  now  done.  It  is  a  flagrant 
abuse  and  a  great  impediment  to  justice.  The 
newspapers  might  well  be  forbidden  to  publish 
anything  concerning  a  case  that  is  actually  in 
court,  except  accurate  reports  of  proceedings  in 
court.  After  the  Crippen  case  was  tried,  the 
publisher  of  a  newspaper  was  heavily  fined  for 
publishing  a  false  statement  that  Crippen  had 
confessed,  and  if  this  precedent  were  followed 
here  the  newspaper  statements  which  now  em- 
barrass the  course  of  justice  might  be  less 
common. 

213 


REFORM  OF  LEGAL  PROCEDURE 

Let  us  now  suppose  that  the  jury  has  been 
impanelled,  and  proceed  with  the  trial.  Here 
again  we  find  every  precaution  taken  to  protect 
the  guilty. 

In  the  first  place  the  Constitution  provides 
that  "no  person  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself."  Originally 
the  criminal  could  not  testify  at  all,  but  statutes 
have  given  him  this  right,  and  have  coupled  it 
with  the  provision  that  if  he  elects  not  to  take 
the  stand  no  argument  shall  be  made  or  inference 
drawn  against  him  on  account  of  his  refusal. 

The  practical  absurdity  of  this  provision  is 
illustrated  by  the  charge  given  by  a  very  able 
judge  in  Massachusetts,  who  was  asked  to  in- 
struct the  jury  that  no  inference  could  be  drawn 
from  the  fact  that  the  defendant  did  not  take 
the  stand. 

"Yes,"  he  said,  "gentlemen,  that's  the  law  and 
we're  all  bound  to  obey  the  law.  If -the  legisla- 
ture were  to  pass  a  law  that  when  you  walk 
down  State  Street  and  see  the  shadow  of  the 
214 


LAWYER'S  RESPONSIBILITIES 

old  State  House  thro\vn  across  the  street,  you 
are  not  to  infer  that  the  sun  is  shining,  you'd 
be  bound  to  obey  it,  gentlemen,  and  so  you're 
bound  to  obey  this  law!" 

Another  judge  of  our  state  said  with  much 
truth,  "When  the  common  law  undertook  to 
find  a  fact  it  began  by  excluding  from  the  room 
all  the  persons  who  would  be  likely  to  have  any 
knowledge  of  the  subject,"  to  wit,  the  parties  to 
the  suit  and  all  persons  interested  in  the  question 
to  be  tried.  The  rule  which  I  am  discussing  is 
a  conspicuous  example  of  this  absurd  principle. 
The  accused  of  all  men  in  the  world  knows  better 
than  any  one  else  whether  he  is  guilty  or  not, 
and  if  the  object  of  the  criminal  law  is  to  detect 
and  punish  the  guilty,  why  should  he  not  be 
asked  to  tell  what  he  knows?  If  he  criminates 
himself,  can  there  be  better  evidence  of  guilt? 
Why  shouldn't  he  criminate  himself?  Eye-wit- 
nesses may  be  mistaken,  circimistantial  evidence 
may  mislead,  but  the  testimony  of  the  accused 
against  himself  can  be  relied  upon  in  any  but 
215 


REFORM  OF  LEGAL  PROCEDURE 

the  most  exceptional  cases.  One  can  imagine 
circumstances  in  which  the  accused  may  say 
what  he  does  not  mean,  or  may  criminate  him- 
self vmjustly.  True,  and  we  can  cite  cases  of 
mistaken  identity,  cases  where  innocent  men 
have  been  convicted  upon  circumstantial  evi- 
dence, nay  even  cases  where  the  defendant's 
own  confessions  have  proved  false,  but  we  do 
not  on  that  account  exclude  the  evidence  of  eye- 
witnesses, the  admissions  of  the  accused,  or  cir- 
cumstantial evidence.  Nothing  human  is  perfect, 
no  testimony  is  infallible,  but  of  all  evidence 
which  tends  to  establish  the  defendant's  guilt, 
his  own  is  least  likely  to  be  imreliable.  He  may, 
and  in  most  cases  does  lie  to  save  himself,  but 
never  if  he  knows  it  to  accuse  himself. 

The  rule  in  question,  originally  adopted  to  save 
the  subject  from  the  tyrannical  power  of  the 
Crown  when  men  were  persecuted  for  religious 
opinions,  for  pohtical  offences,  for  writing  or 
speaking  the  truth,  is  preserved,  though  the 
reason  for  it  has  long  disappeared.  The  danger 
216 


LAWYER'S  RESPONSIBILITIES 

now  is,  not  that  innocent  men  will  be  convicted, 
but  that  guilty  men  will  go  unwhipped  of  justice. 
Not  only  do  the  Courts  protect  the  criminal, 
but  the  commiuiity  watches  the  trial  with  jealous 
eyes,  and  if  the  murderer  or  other  criminal  is 
convicted,  no  matter  how  justly,  the  news- 
papers are  filled  with  misrepresentations  of  the 
evidence  and  with  appeals  to  sympathy!  Peti- 
tions for  pardon  are  circulated  and  generally 
signed,  some  sensational  newspaper  takes  up  the 
convict's  cause  and  attacks  the  Court  which 
convicted  him,  until,  as  Mr.  Dooley  puts  it:  "th' 
insurance  comp'nies  insure  his  Hfe  for  the  lowest 
known  premyum."  While  this  is  the  attitude 
of  the  community,  there  is  no  danger  that  what 
it  is  now  the  fashion  to  call  "a  gruelling  cross- 
examination,"  or  a  brow-beating  judge,  will 
confuse  an  innocent  man  and  make  him  admit 
guilt.  Any  such  methods  would  surely  raise 
popular  sympathy  and  the  offender  would  be 
visited  with  public  reprobation.  These  bug- 
bears need  not  disturb  us.  It  is  the  conmiunity 
217 


REFORM  OF  LEGAL  PROCEDURE 

and  not  the  criminal  that  now  needs  protection, 
and  if  the  community  is  to  be  protected  it  can 
only  be  by  the  prompt  and  sure  administration 
of  justice.  It  is  the  certainty  rather  than  the 
severity  of  punishment  that  is  needed  to  repress 
crime. 

In  France  and  Germany,  for  many  years,  the 
practice  of  having  the  accused  interrogated  in 
the  presence  of  the  jury  by  the  judge  who  pre- 
sides at  his  trial  has  been  pursued,  and  while 
occasional  scenes  occur  which  impress  us  who  are 
accustomed  to  English  methods  as  unpleasant, 
it  is  always  surprising  to  see  how  lenient  the 
juries  are,  and  how  light  are  the  penalties  for 
serious  offences.  The  Germans  and  French  are 
as  little  likely  to  tolerate  a  system  which  is 
unjust  to  innocent  men  as  are  English  and  Ameri- 
cans, and  if  their  methods  did  not  work  well  in 
practice,  they  would  be  changed.  They  are 
vastly  more  contented  than  are  we,  and  the 
worst  that  happens  there  is  not  so  bad  as  the 
trial  of  Thaw  in  our  greatest  city. 
218 


LAWYER'S  RESPONSIBILITIES 

Especially  does  this  rule  operate  to  defeat  all 
attempts  to  detect  and  punish  the  crime  which 
at  present  is  at  once  most  common  and  most 
dangerous  to  our  institutions  —  the  crime  of 
bribery.  Since  it  is  an  offence  to  give  as  well 
as  to  take  a  bribe,  both  parties  to  the  crime  are 
protected  from  question,  and  as  bribery  is  rarely 
committed  in  the  presence  of  innocent  bystanders, 
the  criminals  cannot  be  convicted  unless  they 
confess  their  guilt.  In  these  circumstances  they 
are  as  safe  as  the  cardinals  who,  under  the  ecclesi- 
astical law,  could  only  be  convicted  of  incontinence 
by  the  testimony  of  nine  eye-witnesses.  The 
recent  disclosures  as  to  the  methods  pursued  in 
the  New  York  legislature,  the  revelation  of 
corruption  in  San  Francisco  and  Pittsburg,  the 
wholesale  purchase  of  votes  in  Adams  County, 
Ohio,  the  bribery  attending  the  election  of  Senator 
Lorimer  in  Illinois,  are  only  a  few  of  many  things 
that  might  be  cited  to  show  how  this  poison  is 
corrupting  our  whole  body  politic.  The  decision 
of  the  Senate  —  that  the  votes  admittedly  bought 
219 


REFORM  OF  LEGAL  PROCEDURE 

in  Illinois  were  not  necessary  to  elect  Lorimer, 
and  that  he  knew  nothing  of  the  purchase  though 
he  did  not  take  the  stand  before  the  investigating 
committee,  shows  the  attitude  toward  such 
offences  of  men  who  should  be,  and  unhappily 
too  often  are,  the  leaders  of  the  community. 
Those  who  supported  Lorimer  in  fact  proceeded 
on  the  theory  that  the  severely  practical  politi- 
cians of  Illinois  threw  away  money  by  buying 
unnecessary  votes,  and  that  the  person  most 
interested  in  the  issue  of  a  sharp  conflict,  him- 
self a  very  practical  man,  was  kept  profoundly 
ignorant  of  what  his  supporters  did,  and  they 
reached  their  conclusion  when  they  were  charged 
with  the  duty  of  keeping  the  Senate  above 
suspicion.  Such  decisions  make  one  think  of 
Demosthenes,  and  wonder  if  our  case  does  not 
resemble  that  of  his  native  country  when  he 
said: 

"What  is  it  that  has  ruined  Greece?    Envy, 
when  a  man  gets  a  bribe;  laughter,  if  he  confesses 
it;  mercy  to  the  convicted;  hatred  of  those  who 
220 


LAWYER'S  RESPONSIBILITIES 

denounce  the  crime,  —  all  the  usual  accompani- 
ments of  corruption." 

If  the  tide  of  corruption  is  to  be  stayed,  we 
must  cease  to  protect  the  criminal,  we  must 
break  down  the  shield  of  silence  behind  which 
he  now  hides  from  justice.  The  Supreme  Court 
of  the  United  States  has  ruled  that  under  a 
statute  properly  drawn  to  protect  him  from 
prosecution  and  punishment  a  man  may  be  com- 
pelled to  give  evidence  even  though  it  criminates 
himself.  We  can  at  least  pass  statutes  which 
extend  this  rule  to  cases  of  bribery,  and  at  least 
convict  half  the  criminals  at  the  expense  of 
letting  the  other  half  go,  on  the  principle  that 
"half  a  loaf  is  better  than  no  bread."  But  why 
should  a  sensible  community  let  half  its  most 
dangerous  enemies  go?  We  contemplate  with 
great  equanimity  the  prospect  of  destroying 
thousands  of  innocent  men  in  war,  but  we  shudder 
at  the  thought  of  asking  a  guilty  man  the  ques- 
tions which  will  prove  his  guilt. 

A  most  important  step  towards  the  administra- 

221 


REFORM  OF  LEGAL  PROCEDURE 

tion  of  justice  will  be  taken  when  by  proper 
changes  in  the  Constitution  and  statutes  the 
accused  can  be  compelled  to  testify,  and  there 
is  no  good  reason  why  we  should  not  adopt  to 
this  extent  the  European  procedure.  We  can 
at  least  try  the  experiment,  and  if  it  fails  we  can 
revert  to  our  present  practice.  We  can  at  least, 
without  changing  the  Constitution,  permit  his 
silence  when  he  might  speak  to  be  used  as  evi- 
dence of  guilt.  We  do  it  now  if  his  silence  is 
anywhere  else  than  in  Court,  for  the  rule  is  well 
settled  that  the  silence  of  the  accused,  when  that 
is  said  in  his  presence  to  which  if  innocent  he 
would  naturally  reply,  may  be  treated  as  evidence 
against  him.  His  silence  in  the  pohce  station  is 
evidence  of  guilt,  his  silence  in  court  is  nothing. 
The  innocent  man  may  be  silent  in  jail  from 
ignorance  of  his  rights,  from  fear  of  his  guardians, 
or  perhaps  from  inadvertence.  In  court  he  has 
the  judge  and  his  counsel  to  protect  him,  and 
what  is  done  is  in  the  full  light  of  day.  If  inno- 
cent he  has  every  reason  to  say  so.     There  is 

222 


LAWYER'S  RESPONSIBILITIES 

no  chance  of  inattention.  If  then  he  keeps 
silent  how  absurd  to  ignore  that  silence.  To 
every  sensible  man  it  is  and  must  be  convincing. 

In  court  our  practice  is  to  treat  the  law  as  a 
game  in  which  the  defendant  must  be  given 
every  chance  to  escape,  and  the  task  of  the 
prosecution  be  made  as  hard  as  possible,  but 
except  in  court  our  practice  is  to  treat  the 
accused  as  a  guilty  man  without  rights.  All 
over  the  country  the  method  of  dealing  with  an 
accused  person,  popularly  called  "the  third 
degree,"  is  practised  without  provoking  any 
public  criticism.  We  read  that  men  are  placed 
in  superheated  cells,  that  they  are  kept  from 
sleeping  by  relays  of  officers  who  talk  to  them  and 
ask  them  questions  without  ceasing;  we  are 
led  to  suspect  other  forms  of  torture,  all  employed 
to  make  the  defendant  criminate  himself. 

A  recent  writer  in  "The  Nation"  gives  an 
instance  which  I  quote  from  his  letter: 

"A  young  man  was  recently  tortured  by  the 
police  of  one  of  our  American  cities  into  signing 
223 


REFORM  OF  LEGAL  PROCEDURE 

a  written  confession  that  he  had  poisoned  his 
wife  and  six-year-old  daughter.  Afterwards  the 
cause  of  their  death  was,  by  conclusive  and  unim- 
peached  evidence  .  .  .  proved  ...  to  have  been 
the  inhalation  of  gas,  given  off  from  a  defective 
gas  water-heater.  He,  too,  was  seriously  poi- 
soned by  the  gas,  was  rendered  unconscious  by 
it,  and  was  locked  in  a  hospital  for  treatment 
and  poUce  surveillance.  Upon  gaining  semi- 
consciousness, he  was  carried  from  his  hospital 
bed  to  the  municipal  chamber  of  torture.  In 
his  weakened  physical  and  distressed  mental 
condition,  he  was  subjected  to  such  bodily  vio- 
lence at  the  hands  of  the  police  for  the  purpose 
of  procuring  from  him  this  confession,  that  his 
body  bore  the  marks  of  it  for  several  weeks.  He 
was  indicted  for  murder  solely  upon  that  con- 
fession, which  was  the  only  evidence  against 
him.  He  spent  three  months  of  his  life  in  jail 
waiting  for  the  trial  by  which  he  was  not 
merely  found  not  guilty,  but  judicially  proved 
innocent." 

224 


LAWYER'S  RESPONSIBILITIES 
From  another  newspaper  I  take  the  following 
account  of  how  a  Chinaman  accused  of  murder- 
ing a  young  woman  was  treated: 

"Like  a  wild  animal  at  bay,  the  Chinese  was 
placed  in  a  chair  where  he  had  to  face  the  com- 
bined enemy.  All  the  preparations  were  carried 
out  with  a  methodical  quietness  and  dehberation 
most  calculated  to  wear  on  the  nerves  of  a  man 
who  knows  he  is  suspected  and  does  not  know 
what  is  in  the  minds  of  the  men  who  are  planning 
a  combined  move  against  him.  .  .  The  little 
Chinaman,  his  eyes  bloodshot  from  exhaustion 
and  lost  sleep,  was  planted  in  a  big  chair  while 
big  Carey,  captain  of  detectives,  and  Assistant 
District  Attorney  Theodore  H.  Ward  stood  in 
front  of  him  driving  their  questions  home.  .  . 
Attorney  Ward,  without  a  moment  of  warning, 
turned  on  the  Celestial,  and  standing  above  him 
and  pointing  an  accusing  finger  in  his  face,  almost 
shouted:  'You  killed  Elsie  Sigel.'" 

"You  could  hear  the  roar  of  Carey's  voice  as 
he  bellowed  some  emphatic  charge,  the  quieter 
225 


REFORM  OF  LEGAL  PROCEDURE 

monotone  of  Ward's  as  he  prodded  the  China- 
man persistently,  determinedly,  and  the  falsetto 
squeak  of  Chung  Sin  when  they  stung  him,  as 
they  did  every  now  and  then,  to  hysterical  rage. 
.  .  .  Police  ofiicial  after  police  oflScial  had  been 
pecking  at  him  all  day  since  6  o'clock  in  the 
morning,  when  Lieut.  Forbes  brought  him 
down  from  Amsterdam,  where  he  had  been  caught 
on  Monday.  .  .  It  was  not  permitted  to  Chung 
Sin  to  sleep  on  Monday  night.  As  soon  as  Forbes 
got  the  Chinese  away  from  the  chief  at  Amster- 
dam, he  began  to  shoot  questions  at  him.  He 
grilled  him  while  they  waited  for  the  train,  while 
they  made  the  long  ride  to  this  city,  while  they 
were  on  their  way  to  police  headquarters,  and 
when  Forbes  left  off  Capt.  Carey  took  it  up. 
For  twenty-four  hours  they  racked  him  with 
questions.  .  .  An  all  day's  experience  with 
the  third  degree  at  police  headquarters  did  not 
shake  the  nerve  of  the  Chinese.  .  .  At  one 
point,  he  began  to  show  his  annoyance  at  the 
continued  questioning.  He  became  surly  and 
226 


LAWYER'S  RESPONSIBILITIES 

peevish.  Evidently  believing  a  psychological 
moment  had  arrived,  Captain  Carey  suddenly 
jumped  up  and  shouted:  'You  helped  put  the 
cord  around  the  girl's  neck! '  Chung  also  jumped 
up,  and  dropped  back  into  his  chair,  wheeling 
completely  about.  But  it  was  not  from  fear. 
He  had  merely  been  startled  by  the  noise  and 
suddenness  of  the  question.  He  insisted  that 
he  had  not  seen  the  cord  around  the  girl's  neck, 
and  did  not  see  the  crime  committed.  .  .  He 
flashed  anger  when  Assistant  District  Attorney 
Ward  and  Capt.  Carey  tried  to  break  him  down 
with  the  constant  question:  'You  did  tie  the 
rope  around  Elsie's  neck,  didn't  you?'  Hour 
after  hour  they  pounded  him  with  that  question, 
turning  it  and  twisting  it,  but  the  Chinaman 
squirmed  free  every  time.  .  .  It  is  thought  by 
the  police  that  a  continuation  of  the  examina- 
tion of  the  witness  will  result  in  his  giving  more 
valuable  information." 

The   Chief   of   the   Detroit   detectives   states 
his  practice  as  follows: 

227 


REFORM  OF  LEGAL  PROCEDURE 

"I  am  a  police  officer,  not  a  lawyer.  We've 
got  to  make  laws  of  our  own.  If  we  suspect  a 
man  we  see  that  he  doesn't  get  a  lawyer  near  him 
until  we  get  through  with  him.  We  question 
him,  and  comer  him  up  until  he  confesses.  There 
was  that  young  fellow  who  murdered  the  old 
woman,  and  who  was  acquitted  by  the  jury 
though  he  confessed.  We  used  no  brutality. 
He  said  he  wanted  to  confess,  after  some  facts 
were  shown  to  him.  If  a  man  has  committed 
a  murder,  we  are  going  to  get  that  man  to  confess 
if  we  can.  They  break  doA;vn.  But,  brutality, 
naw,  none  of  that.  Mind,  I  ain't  saying  anything 
about  the  play,  but  that's  all  wrong.  We  kept 
at  Hamburger  day  after  day.  He  was  a  well- 
dressed,  good-looking  fellow.  I  knew  it  would 
be  hard  to  put  it  on  him.  But  after  some  days 
he  would  hold  his  hands  about  his  waist  as  if  in 
pain,  and  say,  'l  feel  so  bad.  I  feel  so  bad.  I 
want  to  tell  you  all.  But  I  cannot,  I  cannot.' 
We  saw  that  we  had  him  goin'.  He  finally 
broke  down.  They  usually  break  down.  And 
228 


LAWYER'S  RESPONSIBILITIES 

in  spite  of  his  confession  we  had  a  hard  time  con- 
victing him." 

One  more  statement  is  found  in  the  "New 
York  World"  of  November  30: 

"The  latest  thing  in  accommodations  at  the 
new  building  is  what  the  poUce  term  the  'roast 
or  freeze  third-degree  rooms.'  There  are  two 
rooms  in  the  basement  to  be  devoted  entirely 
to  this  work.  They  are  absolutely  bare  and 
forbidding,  with  steel  walls  and  pipes  for  quick 
changes  of  temperature.  Above  the  grated 
ceilings  electric  Ughts  are  so  arranged  as  to 
light  the  rooms  instantly  or  else  throw  them 
into  complete  darkness.  The  temperature  of 
the  rooms  can  be  lowered  or  increased  in  a  few 
minutes,  which  means  a  real  'sweating'  or  a 
'freeze  out'  for  the  unfortunates  made  to  submit 
to  the  process." 

These  statements  and  others  Uke  them  are 

made   constantly  m   the  newspapers,   and  one 

reads  the  nonchalant  statement  quite  frequently 

that  "the  prisoner  after  undergoing  the  third 

229 


REFORM  OF  LEGAL  PROCEDURE 

degree  confessed."  Thus  while  we  shudder  at 
the  stories  of  mediaeval  tortures  and  regard  with 
horror  the  instruments  of  cruelty  when  we  see 
them  at  Nuremberg  or  in  other  ancient  fortresses, 
we  revive  them  in  our  own  cities. 

In  a  word  the  Constitution  jealously  guards 
the  defendant  from  being  obliged  to  say  anything 
in  court  where  his  rights  would  be  fully  pro- 
tected by  counsel,  judge,  and  pubhc  opinion, 
but  he  is  turned  over  without  any  protection  to 
the  mercies  of  police  officers  who,  believing  him 
guilty  and  goaded  by  the  clamor  of  the  pubHc 
that  the  perpetrators  of  a  crime  be  detected  and 
punished,  resort  to  all  sorts  of  irregular  and  inde- 
fensible practices,  carried  on  in  the  cells  of  jails 
or  other  places  of  detention,  to  obtain  his  con- 
fession of  guilt.  How  irrational  and  lawless  is 
the  community  which  tolerates  a  secret  inquisi- 
tion by  detectives  and  regards  with  horror  an 
open  inquiry  in  a  Court!  It  is  time  that  our 
practice  was  suited  to  the  needs  of  justice  and 
the  changed  conditions  of  Ufe,  and  that  the 
230 


LAWYER'S  RESPONSIBILITIES 

accused  be  on  the  one  hand  protected  from  being 
obliged  by  secret  torture  to  criminate  himself, 
and  on  the  other  no  longer  protected  against 
open  inquiry  and  the  proper  inferences  from  his 
answers  or  his  silence. 

If  we  can  simpHfy  our  indictments,  and  make 
the  best  witness  testify  as  to  the  facts,  it  only 
remains  to  secure  prompt  trials  with  only  one 
appeal.  Grand  juries  should  sit  often  enough, 
and  trials  proceed  promptly  upon  indictment. 
A  single  appeal  is  enough,  and  in  criminal  as 
in  civil  cases  the  rule  should  be  that  only  for 
substantial  and  material  error  should  the  judg- 
ment be  reversed. 

The  grounds  on  which  convictions  are  reversed 
are  in  many  cases  absurd.  A  member  of  the 
Alabama  Bar  addressing  the  Bar  Association  of 
that  state  said: 

"I  have  examined  about  seventy-five  murder 

cases  that  found  their  way  into  the  reports  of 

Alabama.     More  than  half  of  these  cases  were 

reversed,  and  not  a  single  one  of  them  on  any 

231 


REFORM  OF  LEGAL  PROCEDURE 

matter  that  went  to  the  merits  of  the  case;  and 
very  few  of  them  upon  any  matter  that  could 
have  influenced  the  jury  in  reaching  a  verdict," 

The  same  story  comes  from  all  over  the  country, 
and  the  American  Bar  Association  has  three 
times  recommended  the  adoption  of  the  rule 
that  no  conviction  shall  be  set  aside  unless  the 
records  shows  that  the  defendant  was  improperly 
convicted. 

If  the  trial  judge  is  given  power  to  sentence 
immediately  after  verdict  where  in  his  judg- 
ment the  exceptions  are  without  merit,  many 
fooUsh  appeals  would  be  discouraged  and  the 
cause  of  justice  would  not  suffer.  Especially 
is  it  important  that  judges  should  be  slow  to 
allow  writs  of  error  which  will  carry  the  cases 
of  men  convicted  under  state  laws  to  the  Supreme 
Court  of  the  United  States.  That  august  tri- 
bunal may  as  a  rule  safely  leave  the  administra- 
tion of  criminal  justice  to  the  tribunals  of  the 
state  in  which  the  crimes  are  committed,  and  the 
delays  secured  by  appeals  to  the  Supreme  Court 
232 


LAWYER'S  RESPONSIBILITIES 

are  from  every  point  of  view  unfortunate.  For 
various  reasons  this  rule  should  be  applied  less 
strictly  to  cases  arising  in  the  territories  of  the 
United  States  where  the  tribunals  are  apt  to 
reflect  the  opinions,  not  of  the  whole  population 
but  of  a  certain  class,  and  of  course  there  must 
always  be  cases  in  which  the  interposition  of 
the  Supreme  Court  is  necessary. 

Finally  a  word  may  be  said  in  regard  to  the 
excessive  and  pernicious  zeal  of  the  lawyers  who 
defend  criminals,  and  it  is  best  said  by  President 
Taft: 

"The  conduct  of  the  defense  of  criminals  in 
this  country,  and  the  extremes  to  which  counsel 
deem  themselves  justified  in  going  to  save  their 
clients  from  the  just  judgment  of  the  law,  have 
much  to  do  with  the  disgraceful  condition  in  which 
we  find  its  administration.  The  awakened  moral 
conscience  of  the  country  can  find  no  better  ob- 
ject for  its  influence  than  in  making  lawyers 
imderstand  that  their  obligation  to  their  clients 
is  only  to  see  that  their  client's  legal  rights  are 
22>Z 


REFORM  OF  LEGAL  PROCEDURE 

protected,  and  that  they  ought  not  to  lose  their 
identity  as  officers  of  the  law  in  the  cause  of 
their  clients  and  recklessly  resort  to  every 
expedient  to  win  the  case.  I  believe  that  there 
is  no  escape  from  the  evil  tendencies  to  which  I 
have  referred,  except  by  inducing  the  Bar  to 
cleanse  itself  of  those  who  in  the  interest  of  their 
clients  forget  their  obUgation  as  attorneys  to 
the  court  and  their  duties  as  a  citizen." 

It  is  by  such  devices  that  the  trial  of  Patrick 
Calhoun  was  prolonged  for  nearly  five  months 
in  San  Francisco  and  ended  in  a  disagreement 
of  the  jury. 

At  the  outset  of  these  lectures  I  pointed  out  to 
you  that  the  law  and  the  legal  profession  have  in 
late  years  sunk  in  popular  estimation,  and  that 
upon  you  and  others  Uke  you  who  are  just  enter- 
ing upon  practice  will  devolve  no  small  part 
of  the  work  which  must  be  done  to  replace 
both  in  their  true  position.  It  will  be  your 
duty  to  make  the  law  respected  and  obeyed,  and 
to  be  respected  it  must  be  respectable.  Judges 
234 


LAWYER'S  RESPONSIBILITIES 

of  high  character,  learning,  and  ability,  cannot 
fail  to  command  for  themselves  and  their  decisions 
the  respect  of  the  community,  but  courts  alone 
do  not  make  the  law.  We  have,  or  shall  soon 
have,  besides  the  Congress  of  the  United  States 
some  forty-eight  state  legislatures,  and  no  one 
knows  how  many  municipal  legislatures,  engaged 
in  making  laws  of  greater  or  less  scope.  Our 
people  are  beset  with  the  notion  that  the  remedy 
for  any  trouble  which  they  encounter,  however 
sUght,  is  to  be  found  in  a  new  law,  and  they 
rush  to  the  legislature  with  every  sort  of  crude 
proposal  for  legislation.  These  are  referred  to 
committees  more  or  less  competent  and  very 
busy;  they  are  hastily  considered,  and  their 
consequences  imperfectly  appreciated.  When 
they  reach  the  legislature  they  are  more  hastily 
and  inconsiderately  amended,  and  often  are 
passed  with  no  adequate  discussion  in  the  closing 
hours  of  a  busy  session.  As  a  result  a  flood  of 
new  law  is  let  loose  upon  the  inhabitants  of 
each  state  every  year  or  two  years,  and  any 
235 


REFORM  OF  LEGAL  PROCEDURE 

public-spirited  citizen  who  watches  the  legisla- 
ture and  tries  to  prevent  foolish  laws  cannot  but 
be  amazed  at  the  way  in  which  our  country  is 
governed. 

Nor  is  this  the  worst  feature  of  the  case. 
Our  Congress  and  our  various  legislatures  have 
it  in  their  power  to  grant  franchises,  special 
privileges,  and  immunities.  They  can  adjust 
taxation  to  favor  some  and  burden  others,  they 
can  pass  very  stringent  regulations  of  private 
business  Hke  the  anti-trust  laws  or  the  interstate 
commerce  laws,  or  the  state  laws  regulating  the 
price  of  gas,  or  the  relations  of  employer  and 
employed.  In  a  word  they  can  by  law  put  money 
into  A's  pocket  and  extract  it  from  B's.  Hence 
arises  a  demand  from  the  men  who  want  legis- 
lative aid  for  one  set  of  laws,  and  from  those 
who  do  not  wish  to  be  disturbed  a  pressure  for 
other  or  no  legislation.  The  danger  is  that  the 
power  to  give  a  man  money  will  not  be  exercised 
for  nothing,  and  it  is  unnecessary  to  take  your 
time  in  proving  what  we  all  know  —  that  persons 
236 


LAWYER'S  RESPONSIBILITIES 

desiring  to  get  or  defeat  legislation  have  bought 
and  will  buy  legislators.  The  price  may  not  be 
paid  always  in  money,  but  in  other  things  which 
men  desire,  such  as  offices,  employment,  chances 
to  share  in  a  profitable  venture,  or  social  oppor- 
tunities. But  whatever  the  price,  it  secures  the 
laws  which  the  buyer  wants,  and  hence  the  jokers 
in  tariff  laws  and  the  various  questionable  statutes 
passed  in  private  interests,  many  instances  of 
which  no  one  familiar  with  state  legislation  can 
fail  to  recall.  These  influences  and  practices 
corrupt  our  legislation. 

On  the  other  hand  the  men  who  are  so  anxious 
to  have  laws  passed  are  by  no  means  equally 
anxious  to  obey  them.  The  manufacturer  and 
merchant  who  have  secured  protection  by  tariff 
legislation  are  found  evading  the  very  tariff 
laws  which  were  passed  at  their  instance.  The 
recent  disclosures  of  smuggling  in  New  York 
both  by  wholesale  importers,  Uke  The  American 
Sugar  Refining  Co.,  and  by  returning  travellers 
are  too  recent  to  need  enumeration.  How  often 
237 


REFORM  OF  LEGAL  PROCEDURE 

do  our  fellow  citizens  who  run  automobiles  respect 
the  speed  Hmit  and  the  other  regulations  made  to 
protect  the  public?  How  carefully  have  the  rail- 
roads respected  the  law  against  rebating,  —  how 
scrupulously  has  the  Sherman  law  been  observed 
by  the  trusts?  How  carefully  have  the  provisions 
of  the  Constitution  and  its  requirements  been 
respected  by  executive  oflBicers  in  our  recent 
experience?  How  well  have  the  States  obeyed 
the  Fifteenth  Amendment?  The  prevalence  of 
lynch  law,  the  mob  violence  which  attends  a 
strike,  the  frauds  in  weights  and  measures  dis- 
covered a  year  ago  in  New  York,  the  departure 
of  half  the  Senate  of  West  Virginia  from  that 
state  in  order  to  secure  some  poHtical  advantage 
—  all  these  things  and  many  more  might  be 
cited  to  show  that  law  is  not  respected  in  this 
country  because  it  is  law.  Men  prescribe  new 
laws,  and  new  laws,  and  again  new  laws,  as  a 
remedy  for  the  ills  of  the  body  politic,  but  they 
despise  their  own  medicine. 
Nor  is  this  altogether  surprising.  Our  system 
238 


LAWYER'S  RESPONSIBILITIES 

of  government  assumes  that  a  statute  will  be 
passed  by  the  representatives  of  the  people 
fairly  chosen,  acting  impartially  under  no  im- 
proper influences,  and  having  in  mind  only  the 
public  interest.  When  the  people  find  that  in 
practice  this  assumption  is  not  justified;  when 
they  find  trust  companies  slipping  through  the 
legislature  a  few  words  in  a  bill  which  exempts 
them  from  taxation ;  when  they  find  a  clause  in  a 
tariff  which  ostensibly  lowers  duties  nullified  by 
a  "joker";  when  they  witness  the  legislative 
struggle  between  two  contending  corporations 
for  a  particular  franchise  and  see  how  the  victory 
is  won,  they  lose  respect  for  the  legislators  and 
their  work.  When  they  find  them  elected  by 
fraud  and  their  work  tainted  by  fraud,  why 
should  they  respect  the  laws  which  they  make? 

For  some  years  I  have  spent  a  portion  of  each 
summer  in  Germany.  I  have  gone  regularly 
in  the  afternoon  or  evening  to  a  garden  where 
concerts  are  given  daily.  It  is  near  a  great  city 
and  admission  is  cheap.  The  concerts  are 
239 


REFORM  OF  LEGAL  PROCEDURE 

attended  by  all  classes  of  people,  and  the  attend- 
ance varies  from  six  or  seven  hundred  to  more 
than  two  thousand.  They  sit  in  seats  or  at  Little 
tables  as  close  as  they  can  be  put.  They  have 
anything  that  they  want  to  drink.  In  three 
years  I  have  never  seen  any  rudeness,  I  have 
never  heard  a  voice  raised  above  the  gentle  pitch 
of  quiet  conversation,  I  have  never  seen  anyone 
drunk,  I  have  never  seen  an  objectionable  or 
disorderly  person,  and  I  have  never  seen  a  police- 
man. The  streets  in  the  town  and  neighboring 
country  are  lined  with  fruit  trees,  and  no  fence 
protects  them  from  the  public.  Indeed  there  is 
hardly  a  fence  or  wall  of  any  kind  from  the  North 
Sea  to  Switzerland,  Yet  the  fruit  on  the  trees 
(ripe  cherries  of  the  most  tempting  kind)  is  as 
safe  as  if  a  dog  or  policeman  guarded  each  tree. 
Where  on  this  side  of  the  water  could  these 
conditions  be  matched?  Near  what  large  Ameri- 
can city  are  fruits  and  flowers  safe  from  depreda- 
tors? 
On  August  I,  the  Swiss  Fourth  of  July,  I  spent 
240 


LAWYER'S  RESPONSIBILITIES 

an  evening  on  a  public  steamboat  on  the  Lake 
of  Thun  which  was  crowded  with  all  sorts  of 
people.  We  cruised  about  for  some  hours, 
looking  at  the  fireworks  sent  up  in  different 
places.  There  was  a  band  on  board  and  a  bar, 
but  the  crowd  was  quiet  and  orderly,  and  a  lady 
without  an  escort  would  have  had  no  reason 
to  fear  any  rudeness.  Who  would  think  of  taking 
ladies  on  an  excursion  boat  in  the  harbor  of  New 
York  or  Boston  or  any  other  port  on  the  night  of 
a  holiday ! 

I  might  multiply  these  experiences,  but  I 
merely  wish  to  indicate  the  difference  between 
that  respect  for  the  law  which  seems  natural 
to  the  Swiss  and  the  Germans  and  which  at  one 
time  was  native  in  New  England  and  the 
present  conditions.  It  is  the  difference  between 
the  spirit  which  breathed  in  the  Massachusetts 
Bill  of  Rights,  where  it  is  written  that:  "The 
legislature  ought  frequently  to  assemble  for  the 
redress  of  grievances,  for  correcting,  strengthen- 
ing, and  confirming  the  laws  and  for  making 
241 


REFORM  OF  LEGAL  PROCEDURE 

new  laws  as  the  common  good  may  require," 
and  the  feeling  of  to-day  which  dreads  the 
assembling  of  any  legislature,  and  hails  its 
adjournment  with  delight.  It  is  this  feehng 
which  leads  men  to  do  all  that  they  can  to  prevent 
an  extra  session  of  Congress,  which  is  content 
with  biennial  sessions  of  the  legislature,  which 
limits  by  constitution  restriction  the  duration 
of  the  session,  which  fetters  the  power  of  the 
legislature  in  various  ways  as  by  preventing  it 
from  passing  special  laws,  or  insisting  that  each 
law  shall  deal  with  a  single  subject  which  must 
be  expressed  in  its  title. 

The  people's  distrust  of  their  own  representa- 
tives finds  expression  in  every  recent  constitu- 
tion, and  in  the  various  attempts  to  improve 
municipal  government  by  abolishing  large  boards 
of  councilmen  and  substituting  a  small  com- 
mission or  increasing  the  power  of  a  mayor. 

In  a  sense  this  change  in  public  feeling  like 
the  tendency  to  hmit  the  power  of  judges  is  a 
reflection  on  our  profession,  for  it  is  we  who  are 
242 


LAWYER'S  RESPONSIBILITIES 

in  very  large  part  responsible  for  legislation. 
Every  legislature  contains  a  large  percentage  of 
lawyers,  and  to  them  their  associates  turn  for 
counsel  on  legal  questions.  Lawyers  appear  in 
support  of  or  opposition  to  proposed  laws, 
they  argue  before  committees,  they  interview 
legislators,  they  influence  legislation  in  open, 
and  unhappily  some  times  in  secret  ways,  and 
as  the  lawyers  are  the  professors  and  priests 
of  the  law  in  every  community,  so  are  they 
responsible  more  than  any  one  else  for  bad 
legislation,  sometimes  because  they  procure  it, 
and  more  often  because  through  laziness,  lack 
of  public  spirit,  or  fear  of  public  odium  they 
fail  to  oppose  it.  We  should  feel  our  responsi- 
bility for  the  laws  under  which  our  community 
lives,  but  the  responsibility  too  often  rests 
lightly  upon  our  shoulders. 

A  statute,  as  I  have  said,  should  be  the  free 

and   honest   expression   of   the   legislative   will, 

and   in   reaching  its  conclusion   the  legislature 

should  be  kept  as  free  from  improper  influence 

243 


REFORM  OF  LEGAL  PROCEDURE 

as  a  judge  or  a  jury.  It  is  a  high  ideal  you  may 
say,  but  it  is  none  the  less  the  ideal  to  which  we 
must  aspire.  There  are  enough  influences  to 
lower  the  standard.  Let  ours  be  always  exerted 
to  keep  it  up.  In  the  homely  phrase:  "You  don't 
hit  high  by  aiming  low." 

As  a  legislator  the  lawyer  should  endeavor 
to  prevent  all  unwise  and  ill-considered  legis- 
lation. A  change  of  the  law  should  only  be 
made  after  due  consideration  and  discussion. 
No  one  can  tell  what  mischief  results  when  the 
Senate  in  a  few  hours  passes  bills  appropriating 
hundreds  of  milHons  of  dollars,  and  by  the 
appropriation  often  commits  the  country  to  a 
mischievous  policy  without  discussion  or  real 
consideration,  as  was  done  when  the  appropria- 
tion to  fortify  the  Panama  Canal  was  passed  by 
the  Senate  without  debate.  The  motto  of  the 
legislator  should  be  "  quality  not  quantity."  The 
hasty  legislation  of  to-day  returns  for  correction 
next  year,  and  it  has  been  said  that  in  Massa- 
chusetts 60  per  centum  of  the  laws  passed  at 
244 


LAWYER'S  RESPONSIBILITIES 

one  session  are  repealed  or  amended  within  a 
few  years.  /The  proportion  may  or  may  not 
be  accurate,  but  a  little  saving  of  time  at  one 
session  often  means  a  great  consumption  of 
time  at  the  next,  and  great  mischief  in  the 
meanwhile. 

Whether  he  sits  in  the  legislature,  or  appears 
before  its  committees  or  in  its  lobbies,  the  lawyer 
should  insist  that  no  improper  influence  be  used 
to  influence  the  legislators.  I  cannot  put  the 
case  better  than  I  did  some  years  ago  in  ad- 
dressing the  American  Bar  Association  when  I 
said  that  a  peculiar  responsibility  rests  upon 
our  profession  in  connection  with  legislation: 
"It  is  we  who  represent  great  corporations 
before  committees  and  conduct  legislative 
campaigns.  It  is  our  advice  upon  which  the 
representatives  of  great  interests  depend.  It  is 
to  'Legal  Expenses'  in  corporation  ledgers  that 
many  a  questionable  outlay  has  been  charged. 
The  fortune  of  our  client  may  be  made  or  des- 
troyed by  the  decision  of  a  court  or  the  verdict 
245 


REFORM  OF  LEGAL  PROCEDURE 

of  a  jury.  The  establishment  of  a  patent  may 
involve  as  many  millions  as  can  be  gained  through 
any  action  of  any  legislature.  Yet  would  we 
on  that  account  take  steps  to  secure  a  packed 
jury  or  try  improperly  to  influence  a  court? 
The  lawyer  who  should  seek  by  foul  means  to 
win  a  verdict  or  secure  a  decision  would  be  driven 
from  the  Bar,  if  discovered,  and  be  forever  dis- 
graced. Is  there  any  reason  for  regarding  a 
legislature  as  less  sacred  than  a  jury?  The 
power  of  the  first  is  far  greater.  The  interests 
in  its  charge  are  far  more  important  than  are 
often  committed  to  a  jury.  The  verdict  affects 
only  the  parties  to  the  cause.  The  law  governs 
the  whole  community.  Should  we  not  on  this 
account  be  even  more  careful  to  guard  the 
legislature  from  improper  approach? 

"  As  officers  of  the  court  we  feel  bound  to  pro- 
tect its  honor.  As  citizens  of  the  common- 
wealth are  we  not  equally  bound  to  defend  the 
purity  of  the  legislature  which  holds  its  power 
in  sacred  trust  for  us  all,  and  on  whose  integrity 
246 


LAWYER'S  RESPONSIBILITIES 

rests  the  continued  existence  of  the  state?  We 
know  that  if  the  community  loses  faith  in  the 
absolute  purity  of  its  courts,  the  whole  social 
fabric  is  imperilled.  We  remember  how  in 
Cincinnati,  indignant  at  the  miscarriage  of 
justice  in  court,  the  mob  burned  the  Court  House 
and  did  justice  according  to  its  own  views.  We 
have  not  forgotten  how  promptly  the  community 
took  the  law  into  its  own  hands  when  a  jury 
acquitted  the  Italian  murderers  in  New  Orleans. 
In  dealing  with  the  delicate  questions  between 
labor  and  capital,  which  are  pressing  upon  us, 
the  legislature  is  the  court  and  jury.  When 
men's  passions  are  as  strongly  enlisted  as  they 
are  in  these  disputes,  the  most  perfect  integrity 
and  the  greatest  wisdom  are  needed  to  adjust 
them.  Absolute  confidence  in  the  arbiters  is 
essential.  Let  it  once  be  believed  by  the  laborer 
that  some  great  legislative  contest  has  been 
determined  against  him  by  money,  and  how  long 
will  it  be  before  we  witness  a  riot  which  mil  be 
perhaps  a  civil  war? 

247 


REFORM  OF  LEGAL  PROCEDURE 

"  The  fees  which  are  paid  for  very  sUght  legis- 
lative services  are  large.  Their  size  often  stig- 
matizes the  employment.  The  temptation  is 
great,  but  we  who  are  the  interpreters  and  to 
a  great  extent  the  makers  of  the  law,  we  whose 
consciences  are  educated  in  courts  of  justice,  we 
who  should  lead  the  community  up,  and  who 
know  that  upon  respect  for  the  law  rests  our 
whole  system  of  government,  we  certainly  cannot 
escape  the  gravest  condemnation  if,  through  any 
act,  advice,  or  acquiescence  of  ours,  the  fountains 
of  the  law  are  polluted.  The  honor  of  our  pro- 
fession, the  future  of  our  country,  are  at  stake. 
The  law  is  in  our  keeping,  and  our  hands  must 
never  weaken  its  hold  upon  the  people.  Let  us 
remember  the  stern  command  of  the  ancient 
Roman,  '  Tu  cole  justitiam.  Tibi  et  aliis  manet 
ultorJ  " 

The  phrase  "corporation  lawyer"  has  become 

a  term  of  reproach,  the  suj6&cient  answer  of  the 

demagogue  to  any  argument  made  by  the  leaders 

of  the  Bar.    This  reproach  is  unjust,   and  its 

248 


LAWYER'S  RESPONSIBILITIES 

injustice  must  be  made  apparent  by  our  conduct. 
In  the  words  of  Governor  Harmon  the  law'yer 
who  acts  for  corporations:  "must  not  forget  that 
they  unhke  his  ordinary  clients  have  or  may  have 
interests  which  conflict  with  those  of  the  public, 
and  that  his  first  duty  is  to  the  public,  not  only 
because  he  is  a  citizen,  but  because  from  it  he 
has  received  his  commission  as  an  oflScer  of 
justice." 
To  quote  from  Governor  Woodrow  Wilson: 
"My  purpose  is  to  recall  you  to  the  service 
of  the  nation  as  a  whole,  from  which  you  have 
been  drifting  away;  to  remind  you  that,  no 
matter  what  the  exactions  of  modem  legal 
business,  no  matter  what  or  how  great  the  neces- 
sity for  specialization  in  your  practice  of  the 
law,  you  are  not  the  servants  of  special  interests, 
the  more  expert  counsellors  of  this,  that,  or  the 
other  group  of  business  men;  but  guardians  of 
the  general  peace,  the  guides  of  those  who  seek 
to  realize  by  some  best  accommodation  the 
rights  of  men. 

249 


REFORM  OF  LEGAL  PROCEDURE 

"You  are  servants  of  the  public,  of  the  state 
itself.  You  are  under  bonds  to  serve  the  general 
interest,  the  integrity  and  enhghtenment  of 
law  itself,  in  the  advice  you  give  individuals. 
It  is  your  duty  also  to  advise  those  who  make 
the  laws  —  to  advise  them  in  the  general  in- 
terest, with  a  view  to  the  amelioration  of  every 
undesirable  condition  that  the  law  can  reach, 
the  removal  of  every  obstacle  to  progress  and 
fair  deaUng  that  the  law  can  remove,  the  Hghten- 
ing  of  every  burden  the  law  can  Hft,  and  the 
righting  of  every  wrong  the  law  can  rectify.  The 
services  of  the  lawyer  are  indispensable  not  only 
in  the  application  of  the  accepted  processes  of 
the  law,  the  interpretation  of  existing  rules  in 
the  daily  operations  of  life  and  business.  His 
services  are  indispensable  also  in  keeping  and 
in  making  the  law  clear  with  regard  to  responsi- 
bility, to  organization,  to  liabihty,  and,  above 
all,  to  the  relation  of  private  rights  to  the  public 
interest.  .  . 

"Some  radical  changes  we  must  make  in  our 
250 


LAWYER'S  RESPONSIBILITIES 

law  and  practice.  Some  reconstructions  we  must 
push  forward  which  a  new  age  and  new  circum- 
stances impose  upon  us.  But  we  can  do  it  all 
in  calm  and  sober  fashion,  like  statesmen  and 
patriots.  Let  us  do  it  also  like  lawyers.  Let  us 
lend  a  hand  to  make  the  structure  symmetrical, 
well-proportioned,  soUd,  perfect.  Let  no  future 
generation  have  cause  to  accuse  us  of  having 
stood  aloof,  indifferent,  half  hostile,  or  of  having 
impeded  the  reaUzation  of  right.  Let  us  make 
sure  that  liberty  shall  never  repudiate  us  as  its 
friends  and  guides.  We  are  the  servants  of 
society,  the  bond-servants  of  justice." 

Not  only  must  we  protect  the  legislature 
against  corruption  by  citizens  and  their  counsel, 
but  we  must  protect  it  against  the  usurpation 
of  its  power  by  the  executive.  The  true  principle 
of  our  government  is  stated  in  the  Massachusetts 
Bill  of  Rights: 

"Li  the  government  of  this  Commonwealth, 
the  legislative  department  shall  never  exercise 
the  executive  and  judicial  powers,  or  either  of 
251 


REFORM  OF  LEGAL  PROCEDURE 

them;  the  executive  shall  never  exercise  the 
legislative  and  judicial  powers,  or  either  of  them; 
the  judicial  shall  never  exercise  the  legislative 
and  executive  powers,  or  either  of  them;  to  the 
end  it  may  be  a  government  of  laws  and  not  of 
men." 

The    people    through    their    representatives 
chosen  for  that  purpose  make  the  laws. 

The  executive  o£&cers,  president  or  governor, 
are  chosen  to  execute  the  laws.  They  have  the 
power  to  suggest  laws  which  they  think  wise, 
and  to  veto  those  which  they  think  unwise,  but 
no  more.  The  power  to  recommend  is  not  the 
power  to  legislate.  Whatever  influence  can  be 
exerted  by  recommendation,  the  executive  has 
the  right  to  exercise,  but  no  more.  Some  body 
of  men  must  decide  what  legislation  is  wise, 
and  the  legislature  is  that  body  of  men.  The 
President  may  have  one  opinion  as  to  what  law 
should  be  passed,  the  Supreme  Bench  another, 
the  House  of  Bishops  perhaps  a  third,  but  the 
legislature's  judgment  must  prevail. 
252 


LAWYER'S  RESPONSIBILITIES 
The  Governor  or  the  President  may  explain 
to  the  people  why  he  advises  a  certain  measure 
as  President  Lincoln  used  to  do,  and  as  Governor 
Hughes  recently  did  in  New  York,  but  when  he 
goes  beyond  this  limit,  when  he  gives  or  with- 
holds patronage  to  influence  votes,  he  is  in  fact 
bribing  the  legislature.  The  ofiices  are  created 
in  order  that  the  pubhc  business  may  be  done, 
not  to  provide  a  corruption  fund,  and  when 
appointments  are  made  or  refused  to  secure 
support  for  the  executive's  policy,  when  members 
of  the  legislature  are  rewarded  or  punished  not 
for  voting  as  they  think  right  but  for  voting  as 
the  executive  wishes,  they  are  influenced  cor- 
ruptly, and  the  will  of  the  executive  not  the  judg- 
ment of  the  legislature  makes  the  law. 

The  question  is  not  whether  a  given  measure 
is  good  or  bad;  if  bad  it  should  not  be  passed,  if 
good  public  opinion  can  be  trusted  eventually  to 
force  its  passage.  The  question  is  who  shall 
decide  whether  it  is  good  or  bad,  the  executive 
or  the  legislature,  and  whether  the  decision  when 
253 


REFORM  OF  LEGAL  PROCEDURE 

made  shall  be  the  honest  judgment  of  the  legis- 
lator, or  simply  a  decision  which  he  is  paid  to 
render  by  getting  something  that  he  wants  for 
himself. 

The  tendency  to  control  the  legislature  by 
other  means  than  fair  argument  has  of  late  been 
unpleasantly  manifest.  "My  poHcy,"  as  Presi- 
dent Johnson  called  it,  or  "my  policies,"  the 
phrase  adopted  by  his  recent  successors,  are 
phrases  of  ill  omen,  and  it  is  the  duty  of  our 
profession  to  resist  all  efforts  to  impose  upon  the 
representatives  of  the  people  the  poUcies  or 
opinions  of  one  man  by  any  appeal  to  improper 
motives.  And  I  say  this  though  I  favor  many 
of  the  measures  which  are  thus  improperly 
pressed.  What  is  done  to-day  for  good  ends 
is  a  precedent  which  may  be  quoted  hereafter, 
when  the  same  things  are  done  to  promote  bad 
measures.  The  public  opinion  of  the  American 
people  is  the  only  weapon  that  a  President  needs 
to  carry  any  good  measure  through  Congress. 
When  that  fails,  the  measure  should  fail  too. 
254 


LAWYER'S  RESPONSIBILITIES 

And  now,  gentlemen,  my  task  is  done.  You 
are  about  to  enter  the  service  of  the  law,  and 
perhaps  are  familiar  with  the  sonorous  words  in 
which  Hooker  describes  the  ideal  law: 

"  Her  seat  is  the  bosom  of  God,  her  voice  the 
harmony  of  the  world,  all  things  in  Heaven  and 
Earth  do  her  homage,  the  very  least  as  feeUng 
her  care,  and  the  greatest  as  not  exempted  from 
her  power." 

It  is  this  ideal  for  which  you  must  labor,  and 
the  rewards  which  await  him  who  shall  do  his 
part  in  lifting  our  profession  from  its  present 
low  estate,  in  making  the  administration  of  the 
law  a  prompt  and  efficient  method  of  doing 
justice,  and  in  causing  the  law  everywhere  to 
be  respected  and  worthy  of  respect  are  far  greater 
than  any  fortune  or  fame  which  he,  however 
brilliant  he  may  be,  can  hope  to  win,  who  makes 
himself  only  the  tool  of  his  chent.  The  unscru- 
pulous lawyer  who  sells  his  talents  and  espouses 
any  cause  or  adopts  any  means  to  accomplish 
his  client's  ends,  who  makes  his  client  in  a  word 
255 


REFORM  OF  LEGAL  PROCEDURE 

his  master,  will  live  to  say  with  Wolsey,  and 
with  as  bitter  regret: 

"Had  I  but  served  my  God  with  half  the  zeal 
I  served  my  king,  he  would  not  in  mine  age  have 
left  me  naked  to  mine  enemies." 


256 


INDEX 


Accused,  The,  value  of  testimony  of,  215-6;  advantage  of 
direct  interrogation  of,  222 

Accident  Insurance,  report  of  New  York  Commission  on, 
57;  the  problem  of,  61;  certain  systems  of,  63;  fraternal 
method,  65;  advantage  of  Mutual  Fire  Insurance,  illus- 
trated, 66;  premium  for,  explained,  68;  possible  advan- 
tage of  State  participation  in,  70,  71;  German  system  of, 
7S>  77 i  report  of  the  Committee  on  the  Judiciary  of  the 
National  House  of  Representatives  on,  78;  President 
Roosevelt  on,  80;  railroad  and  steamboat  and  railroad 
passengers  and,  82-3 

"Advance"  of  Chicago  on  crime,  198-9 

Alabama  Bar,  address  of  member  of,  231-2 

Alger,  George  W.,  article  by,  quoted  from,  104-8 

American  Bar  Association,  recommendation  of  to  Congress, 
171;  recommendation  of  on  setting  aside  of  convictions, 
232;  author's  address  before,  245-7 

Appeals,  Court  of,  quoted  on  changing  testimony,  106; 
cause  of  delay  in,  170 

Arizona,  new  constitution  of,  7 

Bar  Association  of  New  York,  report  of  committee,  146-7 

Bartlett,  Sydney,  advice  of  Mr.  Justice  Miller  to,  163 

Biglow,  Hosea,  aphorism  quoted,  160 

Borough,  President,  case  of,  145-6 

Boston,  frequency  of  personal  injury  suits  in,  51;   cost  of 

257 


INDEX 

jury  sessions  in,  56;    comparative  infrequency  of  dis- 
agreements in,  191 
Bowen,  Lord  Justice,  quoted,  148 
Bribery,  recent  disclosures  as  to  methods,  219 
Brougham,  Lord,  quoted  on  duty  to  client,  29,  30 
Brown,  Mr.  Justice,  on  a  recent  statute,  119-20 

Calhoun,  Patrick,  prolongation  of  trial  of,  234 

Clififord,  Mr.  Justice,  quoted,  157 

Courts,  what  the  decisions  of  decide,  24;  rules  of  English, 
36;  partially  responsible  for  existing  abuses,  125;  ad- 
vantages of  hearing  before,  135-6;  plans  adopted  for 
securing  speed  in  English,  142-4;  plea  for  establish- 
ment of  final  judges,  149;  point  of  view  of,  162;  advan- 
tages of  oral  argument  in,  163-5;  need  for  increased 
power  of,  173;  criminals  nowadays  protected  by,  217 

Crippen  Case,  time  taken  to  select  jury  in,  211;  publisher 
fined  for  false  statement  concerning,  213 

Cross-examination,  a  dangerous  amusement,  96;  rules 
for,  97 

Delay,  causes  during  trial,  92;  remedies  for,  93;  in  Phila- 
delphia V.  Pittsburgh,  108-9;  bow  to  avoid,  109;  reading 
judgments,  cause  of,  170 

Demosthenes,  cited,  220 

Dickinson,  Secretary,  quoted,  201 

Disputed  Wills,  source  of  litigation,  89;  method  of  avoid- 
ing, 89,  90 

"Dooley,  Mr.,"  on  judges,  165-6;  on  the  convict's 
chances,   217 

Eliot,  President,  quoted,  199 

Ellis  v.  Delaware,  Lackawanna  and  Western  R.  R.  Co.,  105 

Employers'  Liabihty,  President  Roosevelt  on,  80 

258 


INDEX 

England,  procedure  in,  48;  description  of  court  in,  98; 
place  of  Judge  in,  iii;  on  Judges  summing  up  in,  123; 
counsel  not  limited  in  161;  work  of  Judges  in,  in  com- 
parison with  Chicago,  Massachusetts,  187-90;  jury 
easily  impanelled  in,  211 

Folk,  Governor,  efifect  of  imperfect  indictment  in  convic- 
tions secured  by,  209;  conspicuous  rascal  on  convic- 
tions of,  209 

France,  sj'stem  of  interrogation  01  witnesses  in,  218 

Franchise  Tax  Law,  case  of,  146 

Germany,  on  direct  interrogation  of  accused  in,  218; 
author's  experience  in,  239-40;  respect  for  law  in,  241 

Hamilton,  Alexander,  quoted,  174 

Harbin  v.  Maslerman,  L.  R.  ist  Chan.  Div.,  37 

Hoar,  Judge,  on  beginning  opinion,  168 

Holt,  Judge,  on  number  of  criminals,  195 

Hopkins,  Charles  T.,  on  Atlanta  riots,  quoted,  201 

Hooker,  description  of  the  ideal  law,  255 

Hough,  Judge,  statement  of,  130-2 

Hughes,  Mr.  Justice,  quoted,  159 

Humphreys,  Judge,  censured,  6 

Indictment,  its  object,  203;  suggested  form  of,  204;  so- 
called  flaws  of,  205;  examples  of  imperfect,  206-8;  in- 
stances of  results  of,  209;   need  of  simple  forms  of,  210 

Interstate  Commerce  Act,  subject  of  study  in  law 
courts,   19 

Jeffrey,  Lord,  quoted,  12 

Judges,  described  as  "fossilized,"  "reactionary,"  6;  dictum 

259 


INDEX 

of  English,  54;  duties  of,  in  relation  to  altercations 
between  counsel,  93;  duties  in  cross-examination,  94; 
story  of  an  English,  94-5;  charge  of  a,  loi;  slight 
chance  of  injustice  from  error  of,  103;  capacity  of,  no; 
status  in  England  of,  in;  Mr.  Justice  Gray  on,  112; 
Mr.  Justice  Brewer  on,  113;  powers  and  limitations 
of,  114;  need  for,  115;  Professor  Pound  on,  116; 
further  limitations  of,  117;  full  powers  of,  instanced,  121; 
character  of,  168;  need  for  strong  men  as,  169;  political 
structure  resting  on  power  of,  174;  need  of  strong  bench 
of,  175-6;  how  to  be  obtained,  177;  should  be  ade- 
quately rewarded,  179;  difiBculty  of  securing,  180-1; 
restraint  of  political  burden,  181;  inadequate  treat- 
ment of,  183;  quotation  from  a  Kentucky,  184;  cost  of 
increased  salaries  of,  185;  selection  of,  in  comparison 
with  England,  186-7;  number  of  in  Massachusetts,  187; 
in  further  comparison  with  England,  188-90;  no  greater 
number  of,  required,  190;  charge  of  able  Massachusetts, 
214;  saying  of  another,  215 
Jury,  imperfect  consideration  of,  99;  story  of  a  member  of, 
loi;  province  of,  102;  system  for,  102-3;  desirability 
of  furnishing  stenographer's  report,  to,  122-3;  delay  in 
securing,  209-10;  able  judge's  charge  to,  Massachu- 
setts, 214 

Law,  respect  for  essential,  2;  is  civilization,  11;  on 
the  reforms  in,  13-15;  drawn  hastily,  18;  the  delay 
of,  21-3,  5;  value  of  delay  of,  26-8;  cause  for  delay 
of,  32;  diflferent  systems  of  the,  U.  S.,  150;  need  for 
uniformity  of,  151-3;  obedience  to,  illustrated,  214; 
how  freshly  created,  235;  how  adversely  afifected 
by  legislation,  236-7;  power  of  legislation  in  regard 
to,  252 

Lawsuit,  defined,  27;  severe  competitive  examination 
of,  42;  settlement  of,  delayed  for  six  years,  44;  prolific 
260 


INDEX 

cause  of  delay  of,  46;  real  estate  and  insurance,  less 
frequent  cause  of,  50-1 
Lawyers,  duty  of,  leaders  of  corrmunity  in  past,  2;  serious 
faults  of,  6;  incapable  as  leaders,  9;  as  American  states- 
men, 10;  champions  of  liberty,  11;  Massachusetts,  form 
of  oath  of,  30;  San  Francisco  Bar  on  duties  of,  31; 
ethics  of,  32;  standards  for,  38;  need  of  keener  profes- 
sional conscience  of,  46;  remark  of  a,  46;  need  for 
association  of,  86;  fear  of  tricky,  87;  address  to  jury  of, 
unlimited  in  Iowa  and  North  Carolina,  117;  power  of, 
in  Texas,  118;  obligation  of,  to  aid  court,  157;  true  atti- 
tude of,  instanced,  158;  responsible  for  legislation,  243; 
duties  of,  as  legislators,  244 
Lincoln,  Abraham,  cited,  i;    "an  honest  lawyer,"  40;    a 

biographical  note  of,  41 
London,  few  homicides  in,  during  1909,  195 
Lorimer,  Senator,  decision  of  Senate  in  regard  to,  220 
Louisville,  Kentucky,  number  of  homicides  in,  197 
Lowell,  Judge  John,  the  late,  rule  of,  167 

Master  or  Referee,  class  of  cases  held  before,  124;  hearing 
before  occasion  of  delay,  125;  nominal  power  of,  128; 
prolific  sources  of  delay,  causes  for,  134;  system  of, 
unsound,  139;   suggested  remedies  for,  140-1 

Massachusetts,  collection  of  debts  in,  34;  quotation  from 
commission  appointed  in,  47;  Bill  of  Rights  of,  quoted 
from,  183;  number  of  judges  in,  187;  population  of 
in  relation  to  judiciary,  188;  comparison  with  England, 
188-9;   Bill  of  Rights  quoted  from,  241-51 

Mexican,  Law,  covering  Accident  Insurance,  72 

Miller,  Mr.  Justice,  advice  of,  quoted,  163 

Miller,  Tax  Assessor,  marvelous  letter  of,  202 

"Nation,  The,"  a  letter  to,  quoted,  223-4 
National  Economic  League,  Council  of,  vote  of,  8 
261 


INDEX 

Nebraska,  Supreme  Court  of,  provision  in  Constitution, 

how  afifecting,  119 
Newspapers,  full  narratives  of  crime  appear  in,  211;  abuse 

of,  an  impediment  to  justice,  213 
"New  York  World,"  statement  from,  229 


O'Gorman,  Justice,  quoted,  147 

Personal  Injury  Suits,  nature  of,  frequency  of,  51-3; 
abuse  of  medical  testimony  in,  54-5;  reduction  of 
damages  in,  59;  speech  of  a  lawyer  in,  100 

Roosevelt,  Theodore,  cited,  i;  on  public  leaders,  9;  Har- 
vard Alumni  address  quoted,  1 7 ;  address  at  Jamestown 
on  accident  liability,  80 


Scoville,  Mr.,  on  delay  of  jury  trial  in  Philadelphia,  108 

Sherman,  Anti-trust  Law,  varying  interpretations  of,  154 

Sumner,  Charles,  saying  of,  39 

Supreme  Court,  rights  of  poor  man  in,  4;  campaign  upon, 
6;  on  the  Sherman  law,  18;  in  Nebraska,  119;  right  to 
invoke  should  be  rendered  easy,  155;  on  appeals  to,  232 

Taft,  William  Howard,  as  a  judicial  authority,  2;  Chicago 
speech  quoted,  3;  on  defense  of  criminals,  233 

Taxes,  numerous  and  ill-assorted,  152;  instance  of  unfair- 
ness of,  153 

Third  Degree,  the,  223;  instances  of,  224-5;  chief  of 
Detroit  detectives,  method  of,  228;  mediaeval  torture 
of,  230;  illogical  attitude  of  public  towards,  230-1 

Tichborne  Case,  claimant,  length  of  trial  of,  25;    charge 
of  Chief  Justice  Cockburn  in,  11 1-2 
262 


INDEX 

"Times,"  of  London,  article  from,  quoted,  109 
"Tribune,"  Chicago,  figures  on  homicides,  quoted,  195 

Untenneyer,  Samuel,  suggestion  of,  88 

Vance,  Professor,  on  the  American  Lawyer,  5 

Whitcomh  v.  Converse,  cited,  158 

White,  Andrew  D.,  President,  quoted,  196;    "New  Bed- 
ford Standard"  on,  196-7 
Wilson,  Woodrow,  Governor.,  quoted,  249-50 
Witnesses,  trials  of,  126-7 


THE -PLIMPTON -PRESS -NORWOOD -MASS -us -A 


263 


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